Navigating Nuclear Energy Lawmaking for Newcomers: An Asian Perspective (International Law in Asia) [1st ed. 2023] 9819957079, 9789819957071

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International Law in Asia

Ridoan Karim Eric Yong Joong Lee

Navigating Nuclear Energy Lawmaking for Newcomers An Asian Perspective

International Law in Asia Series Editor Eric Yong Joong Lee, YIJUN Institute of International Law, Seoul, Korea (Republic of)

This series aims to provide the latest perspectives on international law in this ever changing region of Asia. Each book of this series will address specific aspect of highly contemporary global issues such as armed conflict, maritime disputes, human rights and refugee crises, sustainable development/climate change, outer space, finance and economy, trade (WTO and FTA), investment, development, technology, intellectual property, international crime, global health, regional questions, etc. This book series invites leading international law scholars and practitioners in Asia to contribute their expertise in interpreting a wide range of legal questions that arise in relation to the above topics through an Asian lens. This series will serve as useful guide for international lawyers, diplomats, businessmen and students to understand current and future trends of international law in Asia.

Ridoan Karim · Eric Yong Joong Lee

Navigating Nuclear Energy Lawmaking for Newcomers An Asian Perspective

Ridoan Karim Department of Business Law and Taxation, School of Business Monash University Bandar Sunway, Selangor, Malaysia

Eric Yong Joong Lee YIJUN Institute of International Law Seoul, Korea (Republic of)

ISSN 2731-8044 ISSN 2731-8052 (electronic) International Law in Asia ISBN 978-981-99-5707-1 ISBN 978-981-99-5708-8 (eBook) https://doi.org/10.1007/978-981-99-5708-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore Paper in this product is recyclable.

Preface

Amidst the encouraging international commitments towards environmental protection and the use of clean energy, there have been repeated failures in achieving the primary goal of eliminating coal-based energy production. It is undeniable that renewable sources like wind and solar power cannot fully replace fossil fuels in the near future. Consequently, nuclear energy emerges as the sole viable alternative for effective energy production when compared to fossil fuels. As the demand for energy continues to surge, particularly in Asia as the rising global powerhouse, there is an urgent need to meet this high and growing energy demand. Developing countries in Asia may face challenges in addressing the increasing electricity demand without incorporating nuclear energy into their grid. While nuclear energy holds immense promise for meeting Asia’s future energy needs, it is crucial to acknowledge the significant legal and governance challenges associated with it. The primary challenge lies in establishing a comprehensive legal and regulatory framework for nuclear energy. Drafting nuclear legislation is a delicate and intricate process that requires careful consideration of the structure and detailed aspects at every level. To facilitate this process for regulators and scholars, the purpose of this book is to introduce the legal and regulatory steps involved in nuclear energy for countries new to this form of energy. By doing so, it aims to assist these nations in benefiting from the utilization of nuclear energy. Overall, the book aims to outline the fundamental principles and logic behind nuclear energy law. It includes various examples from different nations, with a predominant focus on Asia, which serve as excellent illustrations of advanced and innovative nuclear energy law. For those readers desiring a deeper understanding, this text serves as a gateway and stepping stone, while more extensive knowledge can be attained through supplementary readings.

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Preface

We are beholden to Ms. Anushangi Weerakoon at Springer Nature for this publication. The views reflected in this book are our own. Ridoan Karim and Eric Yong Joong Lee take a prior responsibility for any shortcomings and omissions in this work. Kuala Lumpur, Malaysia Seoul, Korea (Republic of) 2023

Ridoan Karim Eric Yong Joong Lee

Contents

1 The Power of the Atom: Navigating the Legal and Literary Landscape of Nuclear Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Energy and Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 5 18 20 20

2 New Nuclear Programs: Prospects and Challenges . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Technical Aspect of Nuclear Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Brief History of Nuclear Energy: Lessons on Regulation . . . . . . . . . . . . . . Social Trust in Nuclear Energy: The Nuclear Debate . . . . . . . . . . . . . . . . . Future of Nuclear Energy: Global Perspective . . . . . . . . . . . . . . . . . . . . . . . Challenges of Nuclear Energy: Nuclear Newcomer Perspectives . . . . . . . Regulatory and Legal Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ensuring Reactor Safety Through Technological Means . . . . . . . . . . . . Ensuring the Public Acceptance of Technology . . . . . . . . . . . . . . . . . . . Nuclear Waste Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Concerns About the Security of Nuclear Material . . . . . . . . . . . . . . . . . . Natural Hazards and Possible Disaster . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Energy’s Low Economic Competitiveness . . . . . . . . . . . . . . . . Supply of Uranium Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

25 25 27 30 37 41 44 45 46 47 48 49 51 52 52 54 54

3 The Global Quest for Nuclear Safety, Security, Safeguard, and Liability: An Analysis of International Legal and Regulatory Framework for Nuclear Energy . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International Nuclear Law: Scope and Objective . . . . . . . . . . . . . . . . . . . . .

59 59 60

vii

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Contents

Safety, Security, Safeguard, and Liability: Key Themes Under International Nuclear Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Safeguard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International Nuclear Law Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Safety and Security Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International Nuclear Safety and Security Regulations . . . . . . . . . . . . . International Environmental Law Principles and Cases Relevant to Nuclear Safety and Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Liability Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Non-proliferation Regime and Safeguards . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Nuclear Energy in Asia: Uncovering the Challenges through the 3S+L Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Energy in Asia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Experienced Nuclear Energy Producers in Asia . . . . . . . . . . . . . . . . . . . Nuclear Newcomers in Asia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suspended or Canceled Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regional Nuclear Governance in Asia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Safety, Security, Safeguard, and Liability in Asia . . . . . . . . . . . . . Challenges of Nuclear Governance in Asia . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Strenthening Nuclear Governance in Asia . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recommendations for Ensuring Nuclear Safety in Asia . . . . . . . . . . . . . . . Measures for Safeguarding Nuclear Security and Preventing Proliferation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Strengthening Nuclear Third-Party Liability Regime . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Nuclear Law: Implementing a Comprehensive Legislation for Newcomers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Key Organizations in Nuclear Regulatory Framework . . . . . . . . . . . . . . . . Legislature (Parliament) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulatory Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

63 64 67 68 69 71 71 75 81 89 93 96 97 101 101 102 102 109 110 114 119 127 129 129 131 131 132 135 140 142 143 145 145 146 147 147 148

Contents

Industry (Electrical Utilities, Operating Organizations, Manufacturers/Suppliers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legislative Process of Nuclear Law and Regulation . . . . . . . . . . . . . . . . . . Fundamental Components: Title, Preamble, Objectives, Scope, Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Independent Regulatory Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Radiation Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Emergency Preparedness and Response . . . . . . . . . . . . . . . . . . . . . . . . . . Processing of Radioactive Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Security and Physical Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nuclear Liability and Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous, Final, and Transitional Provisions: Entry into Force, Succession, Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ix

148 149 151 153 153 157 158 159 160 163 165 166 167 167

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

About the Authors

Dr. Ridoan Karim is Lecturer at the Department of Business Law and Taxation, School of Business, Monash University Malaysia. He has taught and researched in the fields of business and international trade law. Being a passionate researcher and academic, Dr. Ridoan has widely published in peer-reviewed journals and presented papers at several national and international conferences in other areas of interest, i.e. “energy, environment and natural resources law,” “science, technology and law,” “privacy and data protection law,” and “Asian and comparative law,” etc. Dr. Ridoan had acted as Consultant and Fellow in projects funded by the Malaysian Ministry of Higher Education, University of Malaya, and Monash Data Futures Institute (MDFI). Ridoan Karim holds a Doctor of Philosophy (Ph.D.) from the University of Malaya, Malaysia. He also obtained a Master of Business Administration (MBA) from the University of Chichester, UK, a Master of Comparative Laws (MCL) from International Islamic University Malaysia (IIUM), and a Bachelor of Laws (LLB) from BRAC University, Bangladesh. Eric Yong Joong Lee is President of YIJUN Institute of International Law as well as Professor of International Law at Dongguk University, Seoul, Korea. He also served as High and Foreign Expert of State One Thousand Talent Plan of China (2019–2023) teaching and researching at Shanghai University of International Business and Economics. Dr. Lee obtained his BA (political science) and MPA (public policy) from the University of Washington and Seoul National University, respectively. He continued to study international law at Leiden University to complete his LL.M. and completed his Dr.iur. under the supervision of Prof. Peter Malanczuk at Erasmus University Rotterdam, the Netherlands. Professor Lee, an analyst of international law based on international relations, is an expert on international organization, international dispute settlement, and inter-Korean relations. His current academic interests focus on the Korean Peninsula peace process, the US-China strategic competition, global supply chain of COVID-19 vaccine, etc.

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Chapter 1

The Power of the Atom: Navigating the Legal and Literary Landscape of Nuclear Energy

Background The surging demand for energy and the proportion of total energy consumption of electricity are on an excessive rise. The eminent interest in nuclear power has been revived, as an aftermath of worldwide concerns on climate, while increasing anxieties on security and the price of fossil fuel supplies.1 Generating electricity through conventional fossil fuel is more expensive now than ever before because of its limited availability and expensive transportation system.2 As a matter of fact, the world needs new efficient and environment-friendly ways to produce more energy for developed and developing countries to fulfill the considerably increased demand for electricity. Thus, the share of nuclear power for energy production becomes a popular solution. Nevertheless, in addition to nuclear energy production, the world is concerned to ensure fuel diversification with the increasing utilization of renewable energy resources.3 In comparison with the renewable sources of energy production, nuclear energy is still considered as a lucrative option for various reasons, among which the efficiency and cost-effectiveness are vital grounds.4 Today, nuclear power provides

1

The recent conflict between Ukraine and Russia has also highlighted the need for greater energy independence, as many European countries rely heavily on Russian natural gas supplies. Nuclear power can provide a domestic source of energy that is not subject to the same geopolitical risks as imported fossil fuels. See Prisecaru (2022). For the purpose of reviving nuclear power as an aftermath of worldwide concerns on climate, please see Kessides (2012). 2 Kreps (2020). 3 Jones and Warner (2016). 4 Omri et al. (2015). © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 R. Karim and E. Y. J. Lee, Navigating Nuclear Energy Lawmaking for Newcomers, International Law in Asia, https://doi.org/10.1007/978-981-99-5708-8_1

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1 The Power of the Atom: Navigating the Legal and Literary Landscape …

about 10% of the world’s electricity and meet 18% of electricity in the Organization for Economic Co-operation and Development’s (OCED)5 energy requisite.6 Although nuclear power sources have been in great use for supplying the world’s energy demand, the question remains on the reliability issues of nuclear energy in comparison with the alternative sources of energy. For example, advanced and new energy sources, such as hydroelectric and photovoltaic provide a more environment-friendly option to generate electricity.7 They have also shown promising prospects in ensuring cost-effectiveness for energy production in the future.8 Nevertheless, it is difficult to compare these sources unilaterally since an extensive number of variables are related to these energy technologies. For example, one of the vital factors of the effectiveness of renewable energy technologies highly depends on the location of its establishments. Generating energy using wind turbines necessitates a well-suited location that features strong and consistent gusts of wind, as well as extensive, level tracts of land. On the other, photovoltaic energy systems achieve their greatest efficiency in regions that receive year-round sunlight, while hydroelectric power relies on vast, swiftly flowing waterways for optimal results.9 Thus, these alternative energy sources are very much resourcedependent.10 However, in the case of nuclear energy, the site selection or finding a suitable geographical location is easier than those renewable energy technologies.11 Hence, European countries, such as France, produce around 70% of energy through nuclear means as they still suffer to accommodate renewable technologies with their geographical criteria.12 Moreover, with the advancement of fission technology, nuclear energy becomes a highly advanced energy source than that of photovoltaic or other alternative energy sources.13 The realm of renewable energy, such as solar, hydro, and wind power, is currently undergoing a transition phase. The technical aspects of these energy sources are still widely regarded as a “work in progress” by the engineering and technology developers involved. Whereas nuclear energy technology has been developing since the 1960s, and the world now can utilize the most sophisticated and secured atomic technology to generate electricity.14 While experts agree that geographical location and access to generating resources are not a very big concern for nuclear energy 5

The OCED is a group of 34 major countries that does not include rapidly developing, high-energy consuming economies such as China and India. 6 World Nuclear Association. World Energy Needs and Nuclear Power. https://world-nuclear.org/ information-library/current-and-future-generation/world-energy-needs-and-nuclear-power.aspx. Accessed 11 Mar 2023. 7 See Dolter et al. (2022). See Sajjad et al. (2019). 8 See Kabir et al. (2018). 9 McCombie and Jefferson (2016). 10 Wang et al. (2022). 11 Brook et al. (2014). 12 See World Nuclear Association. Nuclear Power in France. https://world-nuclear.org/informationlibrary/country-profiles/countries-a-f/france.aspx. Accessed 11 Mar 2023. 13 Karim et al. (2018). 14 Karim and Muhammad-Sukki (2022).

Background

3

projects, the cost and expenses of nuclear energy remain elusive. This is because the precise costs of nuclear energy are hard to quantify as it relies on numerous factors.15 Even in comparison with coal, gas, and oil, nuclear energy still remains as an expensive alternative. Nonetheless, the true advantage of nuclear energy is its remarkable resilience in terms of “price,” given that fuel accounts for only 31% (on average) of the overall production costs.16 Whereas producing energy either by natural gas or coal, the cost of fuel tends to surge up to 80–90%. This makes energy production through fossil fuels exceedingly sensitive due to price fluctuations in coal and gas. Additionally, system loss originating from conventional fuel infrastructure frameworks cannot be discounted, either.17 Hence, for various reasons, the appeal of nuclear energy stretches out. The clean and environment-friendly energy production, economic competitiveness in case of fueling and transportation, extensive fuel energy density, and sustainable energy supply are among those grounds.18 In spite of massive practical promise as a productive and clean alternative to traditional energy sources, escalating expenses and increasingly mounting regulatory challenges have discouraged the rise of the nuclear power sector worldwide in recent times.19 Owing to these challenges, the energy experts opined that nuclear energy’s future growth is, and more importantly should be, limited.20 Notwithstanding, such negative stances have not influenced the countries which are tagged as developing

15

Gr Chaturvedi et al. (2017). The cost of producing energy from nuclear reactors is made up of various factors, such as the cost of building and maintaining the infrastructure, paying the workers, and purchasing the fuel. However, the cost of fuel only accounts for 31% of the overall production costs. This means that even if the cost of fuel increases, the overall cost of producing energy from nuclear reactors will not necessarily increase by the same amount. This is because the cost of fuel is only a small portion of the total cost, and the other factors that make up the cost of production may not be as affected by changes in fuel prices. In contrast, other sources of energy, such as fossil fuels, rely heavily on the cost of fuel, which can be volatile and subject to fluctuations due to factors such as supply and demand, political instability, and environmental regulations. As a result, the cost of producing energy from these sources can be more unpredictable and prone to price spikes. Therefore, the resilience of nuclear energy in terms of price is seen as a major advantage, particularly in a world where energy demand is growing and there is increasing pressure to reduce greenhouse gas emissions. See World Nuclear Association. Economics of Nuclear Power. https://world-nuclear.org/information-library/ economic-aspects/economics-of-nuclear-power.aspx. Accessed 12 Mar 2023. 17 System loss refers to the energy lost during the generation, transmission, and distribution of electricity from power plants to end-users. In the case of conventional fuel infrastructure frameworks, such as those based on coal or natural gas, there are several sources of system loss that can reduce the overall efficiency of the system. One source of system loss in conventional fuel infrastructure is the inefficiency of the power plant itself. For example, coal-fired power plants typically have an efficiency of around 33%, meaning that two-thirds of the energy in the coal is lost as heat during the combustion process. This heat is typically released into the environment, which not only wastes energy but also contributes to environmental pollution. 18 1 g of Uranium can produce approximately 90,000× more energy as 1 g of coal. See Singh (2015). 19 Horvath and Rachlew (2016). 20 Ibid. 16

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1 The Power of the Atom: Navigating the Legal and Literary Landscape …

Table 1.1 Countries considering, planning, starting, or attending to nuclear power programsa Region

States

Europe

Albania, Serbia, Croatia, Portugal, Norway, Poland, Estonia, Latvia, Lithuania, Ireland, Turkey

Middle East and Africa

Saudi Arabia, Qatar, Kuwait and Iraq, Yemen, Israel, Syria, Jordan, Egypt, Tunisia, Libya, Algeria, Morocco, Sudan, Nigeria, Ghana, Senegal, Kenya, Uganda, Tanzania, Zambia, Namibia, Rwanda, Ethiopia

Central and Cuba, Chile, Ecuador, Venezuela, Bolivia, Peru, Paraguay South America Asia

Azerbaijan, Georgia, Kazakhstan, Mongolia, Bangladesh, Sri Lanka, Uzbekistan, Indonesia, Philippines, Vietnam, Thailand, Laos, Cambodia, Malaysia, Singapore, Myanmar, North Korea, and Australia

a

World Nuclear Association. Emerging Nuclear Energy Countries. https://world-nuclear.org/ information-library/country-profiles/others/emerging-nuclear-energy-countries.aspx. Accessed 12 Mar 2023

(rapidly), for instance, China and India; where expenses for nuclear energy production are not that immense issue since capital and financing costs are much lower than those in the US.21 Therefore, as nuclear energy may have a stifled future in developed countries due to financial, social and regulatory concern, it might have a prospective market in less-developed countries (LDCs). Table 1.1 shows the countries which are considering, planning, starting, or having at some point expressing an interest in nuclear power programs. About 30 countries are considering, planning, or starting nuclear power programs, and a further 20 or so countries have at some point expressed an interest.22 In Europe—Albania, Serbia, Croatia, Portugal, Norway, Poland, Estonia, Latvia, Lithuania, Ireland, Turkey; in the Middle East and Africa—Saudi Arabia, Qatar, Kuwait and Iraq, Yemen, Israel, Syria, Jordan, Egypt, Tunisia, Libya, Algeria, Morocco, Sudan, Nigeria, Ghana, Senegal, Kenya, Uganda, Tanzania, Zambia, Namibia, Rwanda, Ethiopia; in Central and South America—Cuba, Chile, Ecuador, Venezuela, Bolivia, Peru, Paraguay; in Asia—Azerbaijan, Georgia, Kazakhstan, Mongolia, Bangladesh, Sri Lanka, Uzbekistan, Indonesia, Philippines, Vietnam, Thailand, Laos, Cambodia, Malaysia, Singapore, Myanmar, North Korea, and Australia—have expressed their interest and considering nuclear energy for future.23 Despite the huge number of these countries are considering nuclear energy for future, it is anticipated that they will significantly need to enact their own national laws to standardize the regulations of the technology for safe and secure energy production in future. The significant increase on the demand for power in the long run, and

21

See Zhou and Zhang (2010); Gupta (2011); Baron and Herzog (2020). World Nuclear Association. Emerging Nuclear Energy Countries. https://world-nuclear.org/ information-library/country-profiles/others/emerging-nuclear-energy-countries.aspx. Accessed 12 Mar 2023. 23 Ibid. 22

Nuclear Energy and Literature

5

the recent geopolitical instability (Russia-Ukraine War), has particularly provided a ground to revisit nuclear.

Nuclear Energy and Literature Nuclear power is a form of energy produced by an atomic reaction, capable of producing an alternative source of electrical power to that supplied by coal, gas, or oil.24 Nuclear energy was conceived and born in wartime, outpoured as the atomic bomb and grew up in the Cold War clothed in secrecy, suspicion, and fear. The success of nuclear energy is undoubtedly linked to the rapid transition from military to commercial applications of nuclear technology. After many years of military development, the commercial phase of nuclear power was ushered in with the passage of the US Atomic Energy Act in 1954.25 The purpose of this legislation was to promote the general welfare by developing nuclear technology “in connection there with … the national interest to assure the common defense and security and to protect the health and safety of the public.”26 As the world bore witness to some of the most catastrophic nuclear power plant disasters in history, it became painfully clear that robust nuclear safety regulations are paramount to ensuring the safe and sustainable production of nuclear energy. Establishing and maintaining strong regulatory frameworks for nuclear safety is thus a core industrial requirement globally.27 To establish a strong regulatory framework, it is important to understand the definitions of “energy law,” “nuclear law,” and “nuclear energy regulations.” In all respects, the recent fascinating scholastic discussion revealed a substantive debate on the definition of “energy law.” This debate fundamentally arises from the original paper named as Energy law as an academic discipline authored by Adrian Bradbrook,28 in which energy law was characterized as “the allocation of rights and duties concerning the exploitation of all energy resources between individuals, between individuals and the government, between governments and between states.”29 Nevertheless, due to the transformation of energy and new technology, a broader and more authoritative definition of energy law is required in today’s world in order to address all the legal and regulative disciplines. In this regard, law scholars and practitioners should comprehend the substance and parameters of universal energy law through legal practice in the real world. Hence, although the related legal definition concerning of climate and environmental law have been advancing for a very long up until now, the

24

National Geography. Nuclear Energy. https://education.nationalgeographic.org/resource/nuc lear-energy/. Accessed 12 Mar 2023. 25 Karim and Munir (2018). 26 Sec. 2 (e), Atomic Energy Act of 1954, as Amended, p. 23. 27 Williams (2019). 28 Bradbrook (1996). 29 Ibid, 194.

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principles and definition relating to energy law remain unadaptable with the modern development of energy technology.30 According to the recent development in the energy industry, energy law must incorporate specific applications concerning atomic, electric, oil, gas, solar, and other potential electricity sources. Following Adrian J Bradbrook’s definition, the term “energy resources” must not be limited to principal resources. Instead, it should stretch to substitute and secondary resources of energy. Energy laws can incorporate all the fundamental duties and rights arising from laws, case laws, statutes, regulations, edicts and commands to govern the management, control, supervision, employment, practice, utilization and taxation of energy, both renewable and non-renewable. The specific custom of energy law additionally encompasses arrangements for the possession, purchase, ownership, and acquisition of rights regarding licensing, siting and extraction in energy resources and adjudication concerning the rights.31 Similarly, international energy law incorporates all the conventions and treaties within the context of energy that endeavor to establish, integrate, incorporate, and implement public international law.32 In general, individual law, regulation or rule regarding energy resources, and electricity exercises depends exclusively on the national subsistence of each country.33 Nevertheless, the advancement of energy 30

Heffron and McCauley (2017). One critical aspect of energy law is the ownership of energy resources. Energy resources may be privately or publicly owned, and ownership rights may be subject to various legal frameworks, such as national laws, international agreements, or customary laws. The ownership of energy resources also affects the distribution of revenue generated from the sale of those resources. Another important issue in energy law is the purchase and acquisition of energy resources. The terms of purchase agreements for energy resources may be subject to various legal regulations, including price controls, market competition laws, and international trade agreements. Energy law also encompasses regulations regarding the siting and extraction of energy resources. The siting of energy facilities, such as power plants and transmission lines, is subject to zoning regulations and environmental impact assessments. The extraction of energy resources, such as oil and gas, is subject to safety and environmental regulations, as well as laws governing the rights of landowners and the compensation they receive. Finally, energy law also covers adjudication concerning the rights of energy resource owners and other parties involved in the production, distribution, and consumption of energy resources. Disputes over ownership, extraction rights, and environmental impacts may be subject to arbitration or litigation, depending on the legal framework governing the dispute. In summary, the specific customs of energy law encompass a broad range of legal issues related to the ownership, purchase, extraction, and distribution of energy resources. These issues are subject to various legal regulations and frameworks, and disputes may be subject to adjudication in court or through alternative dispute resolution methods. 32 Heffron (2021). 33 Energy resources and electricity are crucial for the economic and social development of a country. Therefore, countries around the world have developed their own laws, regulations, and rules to govern the production, distribution, and consumption of these resources. These legal frameworks vary significantly from one country to another and are typically tailored to suit the specific needs and circumstances of each nation. For instance, some countries may have abundant oil and gas reserves and may prioritize the development of these resources through their legal frameworks. In contrast, other countries may rely on renewable energy sources, such as wind and solar, and may focus on promoting these resources through their legal frameworks. The legal frameworks of a country may also be influenced by factors such as its geography, population, and economic structure. 31

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technology in the era of globalization meant the interference of public international law to govern rights, policies, and practices in the international energy markets. The growing concerns over energy security and the escalating evidence of adverse environmental impacts have underscored the critical need for legal and regulatory interventions by international bodies. These interventions are crucial to promote sustainable practices and pave the way toward a better future.34 Hence, international energy regulatory bodies, such as International Energy Agency (IEA), Council of European Energy Regulators (CEER), World Forum on Energy Regulation (WFER), and International Atomic Energy Agency (IAEA) have been trying to incorporate guides, standards, rules and derivatives to ensure the safe and secure methods of energy generation in the world. In addition, the United Nations (UN) has incorporated several treaties and conventions to safeguard the environment, to ensure sustainable development and to maintain sufficient energy supply for necessary economic development in the world.35 All these conventions, treaties, rules, standards, practice, and customs are part of international energy law. Among the international agencies, IAEA has designed several guides and standards to regulate nuclear energy. In certain guides, standards, and publications, the Agency has tried to define “nuclear law” on several occasions.36 A comprehensive definition of nuclear energy law and the fundamental principles are presented in the Handbook on Nuclear Law,37 which has reached a substantial level of recognition in scholarly endeavor. According to the Handbook, nuclear law is “the body of special legal norms created to regulate the conduct of legal or natural persons engaged in activities related to fissionable materials, ionizing radiation and exposure to natural sources of radiation.”38 We define “nuclear law” as any comprehensive laws or legal framework that governs peaceful applications, utilization, management, and control of atomic and fissionable energy.39 In the case of applying, utilizing, managing, and controlling the peaceful usage of nuclear power, IAEA is the only international body that governs the international nuclear energy laws and regulations. Nevertheless, it In general, the laws, regulations, and rules regarding energy resources and electricity are the sole responsibility of individual countries. While international agreements and organizations, such as the United Nations and the International Energy Agency, may provide guidelines and recommendations, they do not have the power to impose binding regulations on individual countries. As a result, each country must develop and enforce its own legal frameworks to ensure the sustainable production, distribution, and consumption of energy resources and electricity. See Heffron and Talus (2016b). 34 Heffron et al. (2018). 35 Heffron and Talus (2016a). 36 Handrlica (2018). 37 See Stoiber et al. (2003, 2010). 38 Stoiber et al. (2003), p. 4. 39 We believe that the primary goals of nuclear law are to ensure the safe and responsible use of nuclear energy for the benefit of society. This includes balancing the benefits of nuclear technology, such as clean energy generation and medical advancements, with the potential risks, such as nuclear accidents and nuclear proliferation. Hence, we define nuclear law as a comprehensive legal framework that governs the peaceful uses of atomic and fissionable energy. We acknowledge that this field is interdisciplinary and covers issues related to the production, transportation, storage, and disposal of nuclear materials, as well as the licensing and operation of nuclear facilities.

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is important to note that the IAEA alone cannot achieve the milestone of regulating nuclear energy around the world. Ever since its establishment, the Nuclear Energy Agency (NEA)40 has played a significant role in promoting the development of nuclear law as another prominent international organization. Furthermore, the European Atomic Energy Community (Euratom), being another influential international nuclear energy body, has developed specific legal, statutory, and regulatory frameworks to ensure the peaceful use of nuclear energy in Europe.41 While IAEA played a pivotal role in addressing the significant challenges and uncertainties that emerged from the peaceful use of nuclear energy through the establishment of treaties and conventions, Euratom and NEA helped to address community challenges through nuclear technology by advancing research, sharing knowledge, improving the market, and fostering mutual cooperation toward securing a safe nuclear future.42 Other than the nuclear energy law, in different publications, directives, guides, and standards, the term “nuclear energy regulation” has been used repeatedly.43 Nuclear energy regulations are generally the rules or directives made and maintained by an authority (mostly the government or regulatory authority) to regulate the use of nuclear energy and materials to protect the environment and population; to implement international commitments on the peaceful use of nuclear energy; and to disseminate scientific, technical and regulatory information to the public. The term “nuclear energy regulation” is a multifaceted concept, encompassing both the form and substance of the legal and legislative frameworks that govern nuclear power. At its core, it can refer to a range of technical rules and operational requirements, as well as administrative processes that govern the facilities associated with the nuclear fuel cycle.44 These facilities include everything from nuclear fuel fabrication plants to spent fuel storage facilities, and radioactive ore mines and milling facilities. Additionally, nuclear energy regulations can encompass a broad range of substantive rules related to radiation protection, environmental protection, safety of radioactive materials, nuclear security, safeguards, liability, and penal measures.45 From the technical and operational rules to the broad legislative prescriptions, such as 40

The Nuclear Energy Agency is an intergovernmental organization that promotes cooperation in pursuing excellence in nuclear safety, security, technology, research and law among countries with advanced nuclear technology infrastructures. The NEA is based in Paris, France, and is part of the Organisation for Economic Co-operation and Development (OECD). The OECD is a group of 34 major countries that does not include rapidly developing, high-energy consuming economies such as China and India. 41 The European Atomic Energy Community (Euratom) is an international organization founded by the Euratom Treaty on 25 March 1957 with the original aim of establishing a specialist nuclear energy market in Europe, producing and exporting atomic power to its member states while selling the surplus to non-member states. Over the years, however, its spectrum has been greatly extended to include a broad range of areas relating to nuclear power and ionising radiation. 42 Al Faruque (2018). 43 Manteaw (2015). 44 Ibid, 56. 45 Ibid.

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radioactive waste safety or plant, equipment, and operations safety, the term “nuclear energy regulation” remains a complex subject. All these terms, such as “energy law,” “nuclear law,” and “nuclear energy regulation” are essential to understand, as this book has utilized those in different aspects to analyze the legal aspects relating to nuclear energy. Additionally, there are various publications which deliberately used these terms in different occasions to stretch legal discussions on the topic relating to nuclear energy. In general, there are many books already available in the market on significant aspects of nuclear energy, as well as from the legal point of view. However, there are few books which present a comprehensive study on nuclear energy law making and regulations. At the definitional level, Nuclear Energy Encyclopedia: Science, Technology and Applications46 can be considered as a basic reference for anyone whose study relates to any branch of nuclear energy. The book introduces new ideas that expand the frontiers of nuclear science research. Other than reintroducing the readers with new fission technologies, the Encyclopedia additionally explores the history of nuclear energy and presents a brief discussion on its technical aspects. The entries of this Encyclopedia are by and large similar to many other scientific Encyclopedias available in the field. Though not comprehensive by any means, this Encyclopedia is a good starting point for any novice in nuclear law due to its emphasis on definition and historical overview. Subsequent publications such as the 200347 and 201048 Handbook on Nuclear Law published by the IAEA can be viewed as a base analysis on nuclear energy laws for intermediate learners. Any scholar planning to analyze the law/regulation of nuclear energy usually builds on the fundamental ideas outlined in these books. The Handbooks act as a basis of determining the effectiveness of the national legislative structures for handling the complex application of nuclear energy. It comes with solid direction for the agencies working on behalf of the government in strengthening domestic nuclear regulations and laws, equipped with the prerequisites set by international bodies; provides appropriate discussions on the international instruments; and encourages the nuclear energy producing country to adhere to such instruments. It is important to note that although a broad number of literatures are available on various aspects of nuclear energy, the proportion of legal literature among them is surprisingly scarce. Other than these handbooks mentioned above, the issue of nuclear energy regulations has rarely been featured in the scholarly world. In fact, nuclear energy regulation may be very intricate in nature, requiring extraordinary, deep, and diverse viewpoints and expertise. Hence, putting all such regulations on one broad framework could also make things complicated for the readers or researchers. In addition to the above-mentioned Handbooks, IAEA has published several books on international nuclear energy regulations, such as Safety of Nuclear Power Plants: Operation49 and Legal and Governmental Infrastructure for Nuclear, Radiation, 46

Krivit and Lehr (2011). Stoiber et al. (2003). 48 Stoiber et al. (2010). 49 IAEA (2000a). 47

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Radioactive Waste and Transport Safety.50 These seem to be the oldest books, in terms of date of publication on international nuclear energy regulations published and guided by IAEA. The seminal literature cited above set the terms for the governmental and legal infrastructure as regards to the array of nuclear activities and facilities, the origin of ionizing radiation, and transportation of radioactive material and fuel, and the management of radioactive waste. They encompass the construction of the legal framework to place an independent regulatory body and other procedures to gain a robust regulatory control. The guidelines also demarcate all the stages of the life cycle of nuclear power plants and describe the necessary regulatory procedures and span of activities that should be observed by the states willing to produce energy through nuclear means. Furthermore, they institute new issues to display contemporary practices that have been done internationally and provide a description of technical advancements and new concepts. In addition to the study of regulatory bodies (their task and management, duties and safety issues), IAEA has published several significant books which should be considered by any countries taking the initiative to establish nuclear power plants. Review and Assessment of Nuclear Facilities by the Regulatory Body,51 Regulatory Inspection of Nuclear Facilities and Enforcement by the Regulatory Body52 and Review of Probabilistic Safety Assessments by Regulatory Bodies53 are the major safety guides/ books which are published by IAEA. These guides offer expert advice on assessing the compliance of nuclear facilities with safety objectives and requirements, related to location, construction, commissioning, design, operation, and decommissioning. Additionally, these guidelines provide regulatory bodies with recommendations for inspecting nuclear facilities, enforcing regulations, and addressing other pertinent matters. Review of Probabilistic Safety Assessments by Regulatory Bodies specifically presents in-depth direction on reviewing Probabilistic Safety Assessments (PSAs) for nuclear power plants with an intent to provide information about the probable risks within a regulatory decision-making process. It further addresses the relevant technical issues and provides a comprehensive account of the field. Another important publication that came after the Fukushima disaster is named Safety of Nuclear Power Plants: Design.54 This guidebook sets the terms suitable for the design and management of NPPs and adds flesh to the safety principles, safety objective, and theories that contribute the foundation to determine the safety specifications/terms that are must-have requirements for the design of a NPP. This document is beneficial for the organizations engaged in the operation, construction, manufacture, modification, design, maintenance, and decommissioning/ending of NPPs, and the regulatory parties. In 2011, after the nuclear debacle in Japan’s Fukushima Daiichi NPP, a review of Safety Requirements publications was set in motion. The review showed no notable areas of vulnerability on these guides. 50

IAEA (2000b). IAEA (2002a). 52 IAEA (2002b). 53 IAEA (2002c). 54 IAEA (2016). 51

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However, the review committee provided more regulatory suggestions in order to establish the safety requirement of NPPs.55 Additionally, IAEA also contributed to nuclear regulation literature by illustrating the workflow of licensing procedures at various phases of the lifetime of a nuclear facility installation. A major work regarding this is Licensing Process for Nuclear Installations,56 a guide issued by IAEA which lists topics and requisite documents at every stage. This guide also presents the instructions on the application that an independent regulatory body should adhere to the licensing process. Moreover, it represents the prerequisites that ought to be maintained to satisfy the legal and regulatory terms in case of initiating a nuclear installation and formation of its ventures. Additionally, the regulatory body’s role in ensuring the safety and security of nuclear power plants during the licensing process is crucial. They evaluate and consider the integration of safety and security features to establish a safe facility. The IAEA has made a noteworthy contribution to this effort through the development of the Legal Framework for IAEA Safeguards,57 which is highly commendable. This material comes with a concise, still comprehensive, review of the prevailing legal framework and its historical advancement. It includes the IAEA’s safeguard measures for utilizing nuclear energy only for peaceful purposes. Nuclear Law: The Global Debate58 —another contribution edited by the IAEA— is the most recent addition as an open-access book that explores the history and development of nuclear law, and its current state and future direction. The book is composed of essays written by leading experts in the field, including the Director General of the IAEA. It covers four branches of nuclear law: safety, security, safeguards, and nuclear liability, as well as how it interacts with other fields of national and international law. The book aims to educate representatives of governments, international organizations, and anyone interested in understanding the role of law in enabling the safe, secure, and peaceful use of nuclear technology around the world. It is intended to provoke thought and discussion about how to maximize the benefits and minimize the risks inherent in nuclear science and technology. Generally, IAEA provides basic and comprehensive publications on international nuclear energy law and regulations. However, a variety of authors, lawyers, and legal agencies have also published books on different aspects of nuclear energy regulations and laws in a global aspect. The edited book of Nuclear Energy Agency (NEA) as International Nuclear Law: History, Evolution and Outlook 59 is also another comprehensive work published by OECD. This book highlights the crucial role of human expertise and the development of appropriate technical, legal, and institutional frameworks in ensuring the successful implementation of clean and safe nuclear energy. The book is a combination of articles where authors discussed the history of nuclear energy regulations, the international legal framework of nuclear energy, 55

Ibid, read the Preface of the document. IAEA (2010). 57 IAEA (2013). 58 IAEA (2022). 59 Nuclear Energy Agency (NEA) (2010). 56

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legal aspects of nuclear security and liability, and compensation regarding nuclear energy production. This book serves as a cornerstone for all legal researchers seeking to explore every facet of nuclear energy regulation. However, it is important to note that as the book only focuses on international nuclear energy regulations, it does not discuss any relevant national legislation or regulations related to the production of nuclear energy. The OECD also published a series of books named as Nuclear Regulation,60 which examines various aspects of an effective and efficient nuclear regulation. It includes conference proceedings and analytical reports. This series adopts a farsighted approach to nuclear regulation. For instance, during its initial stages, the series primarily emphasized the potential public trust concerns that nuclear energy might face, particularly in the wake of several high-profile crises. As time progressed, the focus shifted toward regulatory hurdles associated with the decommissioning of nuclear reactors and waste disposal. As these challenges were brought to the forefront, potential solutions were deliberated to enhance public confidence in this promising technology. The Agency further tried to advance its agenda by both arguing in favor of greater transparency to ensure viable long-term operation of power plants, and avoiding crisis based on the motto “prevention is better than cure.”61 Together with IAEA, NEA, and OECD, the individual scholars have always been contributing the academic knowledge of nuclear law and regulation with their significant works and publications. Adopting a juristic historian’s approach, several authors ventured into chronicling the historical and legal aspects associated with nuclear energy’s legacy and risks. Among them, The Oceans in the Nuclear Age: Legacies and Risks62 is a notable one, edited by David D. Caron and Harry N. Scheiber. Sweeping through the disposal of waste to the movement to security, their study outlines the complicated and multifaceted set of connections between the oceans and the nuclear age and explains patterns of international response that have an impact on the laws of sea. Hence, the book can also be very useful for the “Law of the Sea” studies. Meanwhile, focusing on the regulatory and legislative framework for the advancement of nuclear power programs, The Law of Nuclear Energy63 authored by Helen Cook discusses historical and legal aspects connected to construction, procurement, and funding of the newly developed nuclear project, and gives the reader an all-inclusive overview of the subject. The first three chapters consider the IAEA instructions; incorporate the content of national and international nuclear energy law; provide understanding toward potential future improvement to existing regulatory and legislative foundation; and address how to enforce the responsibilities 60

NEA. Nuclear Regulation. https://www.oecd-ilibrary.org/nuclear-energy/nuclear-regulation_1 9900791. Accessed 14 Mar 2023. 61 In the context of the OECD’s work, this means that taking proactive measures to prevent potential issues relating to nuclear energy, and ensuring proper regulatory frameworks and promoting responsible behavior, which can ultimately save more time, money, and resources in the long run than trying to fix the damage caused by the fission technology. See NEA (2014). 62 Caron and Scheiber (2014). 63 Cook (2016).

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included in the international conventions and agreements at the national level. The book also reviews international affairs such as nuclear export controls and liabilities. It discusses the future concerns in nuclear law relating to the new nuclear technologies. The book is very much relevant to a researcher who intends to conduct legal research on a country which has recently engaged in building a nuclear power plant without taking enough legal precautions. The third edition of the book is also available at the moment of writing our monograph.64 In the case of a detailed work on nuclear energy and international environmental law, the book named Nuclear Energy Regulation, Risk and the Environment 65 authored by Abdullah Al Faruque, examined the relations between nuclear energy and international environmental law frameworks existing under public international law. The book addressed questions that have been awaiting comprehensive elaboration for a long time. Therefore, the book represents a timely contribution to the current debate on the legal framework that governs the use of nuclear energy sources and on the relations of the framework established in the domain of environmental law. Raphael J. Heffron’s book, Deconstructing Energy Law and Policy: The Case of Nuclear Energy,66 also provides an innovative and comprehensive analysis of various aspects of nuclear energy. It offers insights on the essential components of successful energy law and policy in the twenty-first century. In today’s world, energy law and policy play a crucial role in the functioning of worldwide economies, especially in addressing the challenges of climate change by reducing carbon dioxide emissions. Despite this, many countries are facing difficulties in establishing effective energy policies that can deliver the required infrastructure to reduce carbon dioxide emissions. The central focus of this book is the development and formulation of energy law and policy within the civil nuclear energy sector. Its purpose is to break down the different elements of effective energy law and policy within a complex and controversial energy industry and to provide valuable lessons to improve the delivery of law and policy objectives. The book explores both successful and unsuccessful approaches, using the nuclear energy sector as a prime example due to its complexity. It is the first book to deconstruct energy law and policy, providing readers with a comprehensive understanding of the essential components of successful energy law and policy, new ideas that can be applied in the future, and lessons learned from the nuclear energy sector. Among other notable works, a book named as Nuclear Law: The Law Applying to Nuclear Installations and Radioactive Substances in its Historic Context 67 authored by Stephen Tromans is a pragmatic guide that refers to the numerous applications of radioactive substances. It comprises and discusses the UK, the EC and international law associating with the operation and authorizing of nuclear power stations, the decommissioning of previous nuclear plants, radiological security, the 64

Cook (2022). Al Faruque (2018). 66 Heffron (2015). 67 Tromans (2010). 65

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managing radioactive waste and used fuel, insurance, liability and the transportation and security of radioactive materials. Instead of the books of international laws, there are specific works discussing nuclear energy regulations in national aspects. Scholars have extensively studied the regulations in the US, Europe, and Japan, among others. In the following discussion, we highlight some of the relevant and significant books. The book of Raymond Murray named as Nuclear Energy: An Introduction to the Concepts, Systems, and Applications of Nuclear Processes68 is a comprehensive study on nuclear energy which generally discusses the prospects for continued and new nuclear power plants in the US. In general, the main feature of the book not only discusses the technical and scientific aspects of nuclear energy, but also gives a broad overview of the regulatory aspects of nuclear energy. It further provides an overview of the economic and social aspects of nuclear energy. However, on the legal point of view, the book does not cover various important regulatory grounds such as regulatory regimes of nuclear energy, liability and safety issues, nuclear disaster control management, and nuclear regulatory safeguards. Thus, in the study of regulations, the book is not comprehensive, though it gives a general and basic idea of the nuclear energy regulation in the US. Another book named as Nuclear Politics in America: A History and Theory of Government Regulation (Studies in Government & Public Policy)69 authored by Robert J. Duffy can be considered as a major work on the nuclear energy regulations in the US. The study traces the root of nuclear politics and engages the reader in how nuclear energy regulations have developed since the World War II. The book is specifically vital as it stretches the discussion of nuclear strategy/plan from Bush and Clinton times, along with the new licensing schemes formulated in the 1992 Amendments to the Atomic Energy Act, disagreement over waste dumping, and the effects of deregulation of electric utilities. By contributing both a review of how regulatory evolution takes place and an illustration of the transmutation of this policy community, Nuclear Politics in America allows a current and extensive representation of policy-making in America. Meanwhile for Europe, Energy Law in Europe: National, EU and International Regulation (2nd Edition)70 edited by Martha Roggenkamp, Catherine Redgwell, Anita Rønne, and Iñigo del Guayo concentrates on the employment of the notable Energy Directives and thoroughly discusses the regulatory and constitutional framework of the key energy-producing authorities in the EU: France, Germany, Italy, Poland, Spain, Denmark, the Netherlands, Norway, and the UK. The book covers legislations including the instruments of cross-border alliance and several other bilateral and multilateral agreements within the setting of the European Union. Progress in each of the energy sectors in the European Union, such as gas, oil, nuclear energy, and renewables are discussed and reviewed in the book. Considering the depth of

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Murray and Holbert (2020). Duffy (1997). 70 Roggenkamp et al. (2016). 69

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legal analysis, this is a contemporary and comprehensive book on overall energy law in Europe. Switching to the Asian continent, Resurgence of Nuclear Power: Challenges and Opportunities for Asia71 is comprehensive work which concentrates on the subjects that explore the revival of nuclear sources in Asia and analyzes the viability and prospects of nuclear sources in the grids of Asian energy. This book provides a brief explorative analysis of the nuclear energy of India. The explanatory discussion of the book also tried to provide an in-depth examination of global and regional nuclear politics relating to the nuclear industry. Additionally, the book scratches the explanations of experts on the current situation of nuclear energy relating to global crisis and analyzes the relevant arguments to understand the nuclear policy-making in the twenty-first century. In addition to the literature on international and national nuclear energy law, there are a few works that not only deal with the technical and regulatory failures of nuclear power plant disasters, but also provide social and economic repercussions of such events. Fukushima: The Story of a Nuclear Disaster 72 written by nuclear specialists with compelling detail thoroughly analyzes the faults and failures of Japan’s Fukushima nuclear power plant. In order to investigate the facts that occurred during and after the meltdowns of Fukushima’s nuclear reactors, the book provides empirical analyses with specific technical records. Together with the books, there are several articles, reports and research materials published on the assessments of such nuclear power plant disasters. Since Chernobyl, many scholars have argued that the legal and regulatory gaps are the prime reasons for nuclear disaster. The proper legal and regulatory mechanism ensures the nexus of energy production by connecting the operators, controllers, government authorities, and nuclear administrators on the same page.73 However, very few articles have addressed the opportunities and challenges of nuclear energy of new coming countries like Bangladesh, Vietnam, Saudi Arabia, Belarus, Turkey, Albania, Poland, and Qatar. As a matter of fact, most of the nuclear newcomers are developing countries, enthusiastic about obtaining the firstever Nuclear Power Plant without having the essential legitimate and administrative framework in order to ensure the suitable outline, development, and secured operation of its nuclear facility. The aftermath stemming from the failure of a nuclear plant can easily get past the national boundaries. Thus, there is a huge study gap where the researchers should come forward to suggest the government of these nuclear newcomers to establish a broad regulatory framework to ensure safe and secure nuclear energy production. An adequate legal framework for nuclear energy must address four fundamental subjects, namely safety, security, safeguards, and liability74 ; all of which have common overarching issues that are very relevant to nuclear law and regulation. 71

Janardhanan et al. (2017). Lochbaum et al. (2014). 73 Wang et al. (2013). 74 Grossi (2022), p. 2. 72

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“Safety” deals with unintended conditions or events leading to radiological releases from authorized activities. It requires responses that focus on engineered protections, such as safety management, regulatory oversight, peer reviews, and emergency preparedness. “Security” focuses on intentional misuse of nuclear or other radioactive materials by non-state elements to cause harm. It requires responses on physical protection, intelligence gathering, law enforcement, and penal measures. Safeguards deal with restraining activities by States that could lead to the acquisition of nuclear weapons. Key safeguard responses are international legal commitments under the NPT and IAEA Safeguards Agreement, export–import regimes, technology transfer controls, and IAEA safeguards verification. “Liability” deals with the legal regime to compensate for nuclear damage through insurance, torts, etc. These four areas have evolved for less than a century and experienced major developments over the past decade in terms of new instruments and arrangements. The areas comprise the pith of nuclear law.75 Historically, each area evolved in a discrete manner as the laws were incorporated only when deemed necessary. Institutional, legal, and regulatory frameworks to govern safety, security, safeguards, and liability are, in the current decade, developing with cross-fertilization of synergies.76 These frameworks are a merger of regulatory responsibilities previously separated from different agencies into a single regulatory body. IAEA’s legislative assistance program has recognized that a new comprehensive approach was required to emphasize the inter-relationships between safety, security, safeguards as well as liability.77 This approach not only recognizes the complex technical and legal inter-relationships as well as the areas of co-existence and diversity of international legal instruments, but also provides for their practical implementation, so that they may be given effect in a national legislative framework. Hence, for a newcomer going for nuclear energy production, the country must introduce a comprehensive nuclear energy regulation relating to nuclear energy safety, security, safeguard, and liability. Already many researchers and different bodies, both public and private, have considered the scientific and technical aspects of nuclear energy development in various national contexts and identified issues concerning financial, legal, regulatory, and social implications in this regard. Nevertheless, there is a group of literature which has discussed this issue from a purely legal point of view. The salutary prospects of nuclear energy are universally acknowledged. This optimism is highlighted by IAEA, where it is forecasted that significant growth in the use of nuclear power can be predicted by 2030.78 Besides, there is a notion of “interest” shown by various countries in introducing nuclear power to supply efficient energy in their grids, whereas around 30 countries have already taken active consideration of

75

Handrlica (2018). Zakariya and Kahn (2015). 77 IAEA. Legislative assistance. https://www.iaea.org/services/legislative-assistance. Accessed 15 Mar 2023. 78 IAEA Safety Standards. http://www-ns.iaea.org/standards/default.asp?s=11&l=90. Accessed 15 Mar 2023. 76

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such an option.79 Given the immense technical, regulatory, and logistical challenges associated with installing nuclear power capacities, they have been categorized and evaluated as “nuclear newcomer countries” based on their capacity and motivations to develop nuclear power.80 Of all the energy production means available to mankind till date, nuclear energy production is reviewed by far the riskiest method.81 In particular, looking back the events like the Chernobyl disaster (Russia) and the very recent Fukushima (Japan) disaster, nuclear newcomer’s readiness arises as a massive question mark. The events at Fukushima and the Chernobyl made the world realize that stronger, more comprehensive and detailed international and national nuclear energy law and regulation are required to ensure the safety and security of the existing and new nuclear power plants in the world.82 Hence, several alterations and amendments are made to certain atomic vitality laws and guidelines in many nuclear energy-producing countries, including the basic nuclear energy laws, the regulation relating to the atomic reactor, guidelines and standards concerning prevention of radiation risks and so on. Additionally, IAEA, NEA, OECD, Euratom suggested to arrange more robust legal methods for disaster control measures and provided special regulations relating to nuclear emergency preparedness. The national authorities of nuclear newcomers must adapt and incorporate several nuclear laws and regulations prescribed by international organizations to ensure the safety of nuclear establishments.83 These international nuclear law materials can adopt the most driving factors to handle the complex legal issues for developing a national nuclear law and regulatory structure. Hence, it is due to the nuclear newcomers adopting such a rigorous and comprehensive legal structure to ensure the well-being of their nuclear energy establishments. A disaster like Fukushima provides a chance to reconsider, to venture back, factor in, and evaluate all the more extensively where, as a group and as a general public, humankind stands. Industrialized nations like the US and Japan have the expertise to take immediate actions in any disaster.84 Nevertheless, such events scratched much due to severe financial loss and consequently created sociopolitical impact as the public attitudes relating to nuclear energy in these countries concluded with negative remarks.85 In the case of developing economies, there is no warrant to believe that these countries in their given circumstances have the capability to recover from a nuclear disaster with its scant resources. Because of the concerns, there is still a negative perception relating to nuclear energy. It is yet unclear how these nuclear newcomers intend to address such an issue of public sentiment. In addition 79

Karim et al. (2018). See Budnitz et al. (2018). 81 See Grossi (2022). 82 See Boscarino (2019). 83 Heffron et al. (2016). 84 For instance, Japan was able to take hold of the Fukushima disaster instantly through technological means; hence, the human losses were reasonably averted. See Gunawan et al. (2017). 85 Bauer et al. (2019). 80

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to developing positive public perception, the countries must focus on human resource development; address issues pertaining to nuclear waste treatments; ensure security of nuclear materials; drive nuclear energy’s economic competitiveness; and deal with the worldwide shortage of uranium resources.

Chapter Organization Considering the breadth of the issues that this inquiry/monograph seeks to deal with, defining the scope and focus of the book is critical. For any book, setting thematic boundaries is important in sharpening the focus. One of the first themes under the microscope of the book is the regulation of safety in nuclear power generation. The term like regulation or regulatory regime and similar expressions herein do not refer to detailed technical and operational rules or requirements for nuclear power generation. They rather refer to the legal framework such as legislation, institutions, and the fundamental measures or general rules and principles that are necessary for minimizing the risks posed by nuclear power plants. The route to the theme, regulation of safety in nuclear power generation, is a dual circuit which comprises the most quotidian and popular trio in nuclear law (safety, security, and safeguards: 3S),86 and liability. Using 3S+liability concept, the book seeks to bring together these four elements, namely safety, security, safeguards, and liability, in an attempt to show their inter-relationship, common origins, and relevance of each element on the other. In recent years, safety is becoming the most crucial principle worldwide for nuclear energy production. The ability to incorporate the 3S+liability (safety, security, safeguards, and liability) into nuclear regulation may effectively deal with nuclear safety, which encompasses the critical aspects of security, safeguard, and liability.87 This happens in a circular motion, rather than simply linking the concepts together. Therefore, the book focuses on international law and best practices in a case study.

86

Bean et al. (2009). Nuclear safety encompasses security, safeguard, and liability because they are all critical aspects of ensuring the safe and responsible use of nuclear technology. Security involves protecting nuclear facilities, materials, and information from unauthorized access or malicious use. This is important because nuclear materials and technology can be used to create weapons of mass destruction, so it is essential to prevent them from falling into the wrong hands. Safeguards are measures put in place to ensure that nuclear materials and technology are only used for peaceful purposes, such as generating electricity. Safeguards can include monitoring and verifying nuclear activities, inspecting facilities, and controlling the export and import of nuclear materials and technology. Liability refers to the legal responsibility for any damage or harm caused by nuclear activities. This can include both physical damage and harm to human health, as well as environmental damage. Liability is important because it ensures that those responsible for nuclear activities are held accountable for any negative consequences that may arise. By incorporating security, safeguards, and liability into nuclear safety regulation, we can ensure that nuclear technology is used safely, responsibly, and for peaceful purposes. See Manteaw (2015).

87

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Relevant legal materials and regulatory systems of several geographical areas are discussed with a comparative perspective. This book comprises seven chapters. The first chapter introduces the subject. It provides a background to nuclear power regulation; describes the essential context of nuclear energy law; and indicates the particular focus of the book. The second chapter aims to shed light on the technical aspects of nuclear production, briefly elaborates on the historical context of nuclear energy, understand the social debate on nuclear energy, elaborates on the future new nuclear programs, and highlights the prospects and challenges of nuclear energy in future. Highlighting the prospects and challenges of nuclear energy can provide a valuable guidance to nuclear newcomers, helping them to make informed decisions about whether to pursue a nuclear power program and how to do so in a safe, secure, and sustainable manner. The third chapter provides historical analysis in a comparative law inquiry. It also discusses the key concepts that frame the analysis, viz. nuclear energy regulation, safety, security, safeguards, liability, public perception on radioactivity, the environment, and regulation approaches. The fourth chapter delves into the complex world of nuclear governance challenges in Asia, exploring how the 3S+L framework is being used to ensure the safe and responsible use of nuclear energy in the region. The chapter provides an overview of current nuclear energy development plans in Asia, examining countries with existing nuclear energy production capabilities, such as China, India, Iran, Japan, Pakistan, South Korea, and Taiwan, as well as newer players in the field, including Bangladesh, Egypt, and Saudi Arabia. Additionally, the chapter takes a deep dive into regional nuclear governance in Asia, highlighting the critical challenges surrounding nuclear safety, security, safeguards, and liability. By shedding light on these challenges, we aim to identify areas for improvement and encourage dialogue about best practices for addressing them. While this chapter focuses on the challenges facing nuclear governance in Asia, Chap. 5, delves into the crucial process of strengthening nuclear governance in the region. Together, these chapters provide a comprehensive analysis of the current state of nuclear governance in Asia and offer insights into the measures being taken to ensure the safe and responsible use of nuclear energy in the region. Chapter 6 provides a guidance on the fundamental components on nuclear lawmaking and provides basic information for model laws/regulation to deal with the serious questions that nuclear power triggers: safety, security, safeguards, liability, etc., and how any gaps in the nuclear regulatory regime should be addressed. It builds upon the detailed work and analysis undertaken in this chapter and in Chaps. 2, 3, and 4. This chapter comparatively investigates and identifies practical and optimal options on effective nuclear regulatory regimes that comply with international law and requirements. It also explores how to reconcile international requirements with nuclear newcomer’s domestic context and resources, especially capacity building and strengthening, and to maintain high safety standards through nuclear lawmaking. The last chapter provides an overall conclusion of the book.

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Conclusion This book is significant because it reviews essential existing international and national nuclear laws and provides a guide for the newcomers to draft a comprehensive nuclear legislation for themselves. This exhaustively and extensively works with the construction of effective nuclear energy regulation for the newcomers by examining every principle and concept of international nuclear energy laws, conventions, case precedents and semi-binding legal guidelines. The inputs of this book should contribute considerably to the development of a sufficiently effective national nuclear power regulatory regime to respond to serious questions and issues on nuclear safety, security, safeguards, and liability. Navigating the Energy Lawmaking Process for Nuclear Newcomers can be a significant resource for countries trying to establish a regulatory framework for nuclear energy. The book provides guidance on the legal issues that must be addressed in order to develop and operate nuclear power plants in a safe, secure, and sustainable manner. A key benefit of this guide is to provide a comprehensive overview of the legal issues that must be considered when developing a nuclear energy program. This includes information on safety regulations, security measures, waste management practices, and liability issues. By providing a comprehensive overview of these issues, the guide helps newcomers to identify potential legal challenges and take steps to address them before they become major problems. Another important aspect of the book is to include the best international practices and standards. Nuclear energy production is a global industry, and its compliance with international standards is essential for the safe and sustainable development. This book is a navigation to the information on the most relevant international agreements and conventions both nuclear countries and newcomers to understand the legal requirements that must be met in order to comply with these standards.

References Al Faruque A (2018) Nuclear energy regulation, risk and the environment. Routledge, New York Baron J, Herzog S (2020) Public opinion on nuclear energy and nuclear weapons: the attitudinal nexus in the United States. Energy Res Soc Sci 68:101567 Bauer MW, Gylstorff S, Madsen EB, Mejlgaard N (2019) The Fukushima accident and public perceptions about nuclear power around the globe—a challenge & response model. Environ Commun 13(4):505–526 Bean RS, Bjornard TA, Hebdich, DJ (2009) Safeguards-by-design: an element of 3S integration (No. INL/CON-09-15652). Idaho National Laboratory (INL). https://inldigitallibrary.inl.gov/ sites/sti/sti/4235645.pdf. Accessed 16 Mar 2023 Boscarino JE (2019) From Three Mile Island to Fukushima: the impact of analogy on attitudes toward nuclear power. Policy Sci 52(1):21–42 Bradbrook AJ (1996) Energy law as an academic discipline. J Energy Nat Resour Law 14(2):193– 217

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Brook BW, Alonso A, Meneley DA, Misak J, Blees T, van Erp JB (2014) Why nuclear energy is sustainable and has to be part of the energy mix. Sustain Mater Technol 1:8–16 Budnitz RJ, Rogner HH, Shihab-Eldin A (2018) Expansion of nuclear power technology to new countries—SMRs, safety culture issues, and the need for an improved international safety regime. Energy Policy 119:535–544 Caron DD, Scheiber HN (ed) (2014) The oceans in the nuclear age: legacies and risks. Leiden, Brill Chaturvedi V, Shukla PR, Ganesan K (2017) A perspective on the cost of nuclear energy. In: Janardhanan N, Pant G, Grover RB (eds) Resurgence of nuclear power. Springer, Singapore, pp 187–209 Cook H (2016) Law of nuclear energy, 2nd edn. Sweet & Maxwell, Springer Cook H (2022) Law of nuclear energy, 3rd edn. Sweet & Maxwell, Springer Dolter B, Fellows GK, Rivers N (2022) The cost effectiveness of new reservoir hydroelectricity: British Columbia’s Site C project. Energy Policy 169:113161 Duffy RJ (1997) Nuclear politics in America: a history and theory of government regulation. University Press of Kansas, Kansas Grossi RM (2022) Nuclear law: the global debate. In: Nuclear law. T.M.C. Asser Press, The Hague Gunawan I, Gorod A, Hallo L, Nguyen T (2017) Developing a system of systems management framework for the Fukushima Daiichi nuclear disaster recovery. In: 2017 international conference on system science and engineering (ICSSE). IEEE, pp 563–568 Gupta A (2011) India’s nuclear energy programme: prospects and challenges. Strateg Anal 35(3):373–380 Handrlica J (2018) Nuclear law revisited as an academic discipline. J World Energy Law Bus 12(1):52–68 Heffron RJ (2015) Deconstructing energy law and policy: the case of nuclear energy. Edinburgh University Press, Edinburgh Heffron RJ (2021) What is energy law? In: Energy law: an introduction. Springer, Cham. http://doi. org/10.1007/978-3-030-77521-6_1 Heffron RJ, McCauley D (2017) The concept of energy justice across the disciplines. Energy Policy 105:658–667 Heffron RJ, Talus K (2016a) The development of energy law in the 21st century: a paradigm shift? J World Energy Law Bus 9(3):189–202 Heffron RJ, Talus K (2016b) The evolution of energy law and energy jurisprudence: insights for energy analysts and researchers. Energy Res Soc Sci 19:1–10 Heffron RJ, Ashley SF, Nuttall WJ (2016) The global nuclear liability regime post Fukushima Daiichi. Prog Nucl Energy 90:1–10 Heffron RJ, Rønne A, Tomain JP, Bradbrook A, Talus K (2018) A treatise for energy law. J World Energy Law Bus 11(1):34–48 Horvath A, Rachlew E (2016) Nuclear power in the 21st century: challenges and possibilities. Ambio 45:38–49 IAEA (2000a) Safety of nuclear power plants: operation. Vienna IAEA (2000b) Legal and governmental infrastructure for nuclear, radiation, radioactive waste and transport safety. Vienna IAEA (2002a) Review and assessment of nuclear facilities by the regulatory body: safety guide. Vienna IAEA (2002b) Regulatory inspection of nuclear facilities and enforcement by the regulatory body: safety guide (2002). Vienna IAEA (2002c) Review of probabilistic safety assessments by regulatory bodies. Vienna IAEA (2010) Licensing process for nuclear installations. Vienna IAEA (2013) Legal framework for IAEA safeguards. Vienna IAEA (2016) Safety of nuclear power plants: design. Vienna IAEA (2022) Nuclear law: the global debate. T.M.C. Asser Press, The Hague Janardhanan N, Pant G, Grover RB (eds) (2017) Resurgence of nuclear power: challenges and opportunities for Asia. Springer, Singapore

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Jones GA, Warner KJ (2016) The 21st century population-energy-climate nexus. Energy Policy 93:206–212 Kabir E, Kumar P, Kumar S, Adelodun AA, Kim KH (2018) Solar energy: potential and future prospects. Renew Sustain Energy Rev 82:894–900 Karim R, Muhammad-Sukki F (2022) Artificial intelligence (AI) in the nuclear power plants: who is liable when AI fails to perform. In: Taghizadeh-Hesary F, Zhang D (eds) The handbook of energy policy. Springer Nature, Singapore, pp 1–21 Karim R, Munir AB (2018) A historical overview of nuclear energy regulations in ASEAN. SEJARAH J Dept Hist 27(1):11–25 Karim R et al (2018) Nuclear energy development in Bangladesh: a study of opportunities and challenges. Energies 11(7):1672 Kessides IN (2012) The future of the nuclear industry reconsidered: risks, uncertainties, and continued promise. Energy Policy 48:185–208 Kreps BH (2020) The rising costs of fossil-fuel extraction: an energy crisis that will not go away. Am J Econ Sociol 79(3):695–717 Krivit SB, Lehr JH (2011) Nuclear energy encyclopedia: science, technology, and applications, vol 5. Wiley, Hoboken Lochbaum DA, Lyman ES, Stranahan SQ (2014) Fukushima: the story of a nuclear disaster. The New Press, New York Manteaw SO (2015) Redefining nuclear safety using an integrative concentric paradigm for effective nuclear power regulation. Univ Ghana Law J 28(42–83):55 McCombie C, Jefferson M (2016) Renewable and nuclear electricity: comparison of environmental impacts. Energy Policy 96:758–769 Murray R, Holbert KE (2020) Nuclear energy: an introduction to the concepts, systems, and applications of nuclear processes, 8th edn. Elsevier, Butterworth-Heinemann NEA (2014) Nuclear site remediation and restoration during decommissioning of nuclear installations (No. NEA-7192). OECD, Paris, p 9. https://www.oecd-nea.org/upload/docs/application/ pdf/2021-02/7192-cpd-report.pdf. Accessed 14 Mar 2023 Nuclear Energy Agency (NEA) (2010) International nuclear law: history, evolution and outlook. Organisation for Economic Co-operation and Development (OECD), Paris Omri A, Mabrouk N, Sassi-Tmar A (2015) Modeling the causal linkages between nuclear energy, renewable energy and economic growth in developed and developing countries. Renew Sustain Energy Rev 42:1012–1022 Prisecaru P (2022) The war in Ukraine and the overhaul of EU energy security. Glob Econ Obs 10(1):16–25 Roggenkamp M, Redgwell C, Ronne A, Del Guayo I (eds) (2016) Energy law in Europe: national, EU and international regulation, 3rd edn. Oxford University Press, UK Sajjad U, Amer M, Ali HM, Dahiya A, Abbas N (2019) Cost effective cooling of photovoltaic modules to improve efficiency. Case Stud Therm Eng 14:100420 Singh P (2015) Nuclear energy comparison with alternative energy sources. http://large.stanford. edu/courses/2015/ph241/singh-p1/. Accessed 12 Mar 2023 Stoiber C, Baer A, Pelzer N, Tonhauser W (2003) Handbook on nuclear law. International Atomic Energy Agency, Vienna Stoiber C, Cherf A, Tonhauser W, Carmona MDLV (2010) Handbook on nuclear law: implementing legislation. International Atomic Energy Agency, Vienna Tromans S (2010) Nuclear law: the law applying to nuclear installations and radioactive substances in its historic context, 2nd edn. Hart Publishing, UK Wang Q, Chen X, Yi-chong X (2013) Accident like the Fukushima unlikely in a country with effective nuclear regulation: literature review and proposed guidelines. Renew Sustain Energy Rev 17:126–146 Wang Q, Wang L, Li R (2022) Renewable energy and economic growth revisited: the dual roles of resource dependence and anticorruption regulation. J Clean Prod 337:130514

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Williams LG (2019) Nuclear safety and nuclear security regulatory challenges facing a country embarking on a nuclear power programme. J World Energy Law Bus 12(1):69–88 Zakariya NI, Kahn MTE (2015) Safety, security and safeguard. Ann Nucl Energy 75:292–302 Zhou S, Zhang X (2010) Nuclear energy development in China: a study of opportunities and challenges. Energy 35(11):4282–4288

Chapter 2

New Nuclear Programs: Prospects and Challenges

Introduction According to a July 2017 International Status and Prospects of Nuclear Power Study conducted by the International Atomic Energy Agency (IAEA), 28 member nations without nuclear power facilities “are considering, planning or starting” nuclear power projects.1 Of these 28 nations, the report states that two have begun building their first nuclear power plant; two have placed orders for their first nuclear power plant, five have decided to invest and are putting infrastructure in place, seven are actively preparing before making a final decision, and 12 are considering implementing a nuclear power program.2 An additional 20 nations reportedly showed interest in nuclear energy, according to the IAEA.3 However, it should be acknowledged that these nuclear newcomers still face significant technical and regulatory challenges, which are barely addressed in the reports from the IAEA. Technical challenges include the high capital costs of building nuclear power plants, the complexity of nuclear technology, and the need for highly trained personnel to operate and maintain nuclear facilities safely. The scale of the grid system is one of the main technical problems for many nations who are planning for nuclear energy as a newcomer.4 Since many nuclear power facilities are larger than fossil fuel plants, generating units with capacities more than around one-tenth of the grid’s capacity is not practical. The quality and capacity of the grid may also be

1

International Status and Prospects for Nuclear Power 2017. http://large.stanford.edu/courses/ 2018/ph241/holland1/docs/iaea-gc-61-inf-8.pdf. Accessed 17 Mar 2023. However, according to the World Nuclear Association, as of 2022, approximately 30 nations are in the process of considering, planning, or initiating nuclear power programs. See World Nuclear Association (2022). 2 Ibid, International Status and Prospects for Nuclear Power 2017. 3 Ibid. 4 Budnitz et al. (2018). © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 R. Karim and E. Y. J. Lee, Navigating Nuclear Energy Lawmaking for Newcomers, International Law in Asia, https://doi.org/10.1007/978-981-99-5708-8_2

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considered on a regional level. In many cases, grid investment may be just as crucial as power plant investment for nuclear energy.5 Whereas, the regulatory challenges include the need for robust safety regulations to ensure the safe operation of nuclear power plants, as well as for effective safeguards to prevent nuclear materials from being used for weapons purposes. Additionally, the process of obtaining regulatory approval for nuclear projects can be lengthy and complex, requiring significant time and resources.6 Nuclear newcomers must initially rely on design licensing by nations such as the UK, the US, France, Russia, and China. State-owned nuclear corporations in China and Russia often also provide operation and fuel services if the newcomers do not develop their own human resources to operate the plant.7 Hence, the challenges might also differ from country to country who are willing to adopt nuclear energy to diversify the energy mix. Therefore, governments of nuclear newcomers should provide favorable conditions for nuclear power investment, including a professional regulatory framework, decommissioning and waste management regulations, participation in international non-proliferation efforts, and third-party liability insurance. The IAEA outlines a “three-step milestone” method to creating nuclear power capability in new nations: preproject phase 1 (1–3 years) results in an informed commitment to a nuclear power program and the establishment of an institution to carry out that program; phase 2 emphasizes decision-making, planning and establishing the regulatory body; and phase 3 deals with the construction of the nuclear power plant, initiatives taken by operational regulatory body and commissioning nuclear laws and safety guidelines.8 Therefore, a nuclear newcomer country should conduct a thorough technical assessment to determine whether nuclear power is a viable option. This assessment should include evaluating the country’s nuclear infrastructure, such as the availability of skilled personnel and the adequacy of regulatory frameworks. Additionally, the country should assess the potential sites for nuclear power plants, considering factors such as geological stability, proximity to water sources, and population density. Establishing a nuclear power program can also be a significant financial commitment, so that the nuclear newcomer country should evaluate the costs associated with building and operating a nuclear power plant. This includes the costs of infrastructure development, fuel procurement, and waste management, as well as potential revenue streams from selling electricity generated by the plant. Then again, as nuclear power plants present potential risks to both the environment and public health, the nuclear newcomer country should develop a comprehensive safety and security plan to minimize these risks. This should include the establishment of regulatory bodies, the development of emergency response plans, and the implementation of strict security measures to prevent unauthorized access to nuclear facilities. 5

Ibid. Karim et al. (2018b) 7 See Thomas (2017, 2018). 8 IAEA (2020). 6

Technical Aspect of Nuclear Energy

27

Last but not the least, a nuclear power program can be a controversial issue. It is essential for the nuclear newcomer country to ensure that the public is informed and supportive of the program. This includes engaging with stakeholders, such as local communities and environmental groups, to address their concerns and build trust. Considering the aforementioned issues, This chapter aims to shed light on the technical aspects of nuclear production, then briefly elaborate on the historical context of nuclear energy, understand the social debate on nuclear energy, elaborate on the future new nuclear programs, and highlight the prospects and challenges of nuclear energy in future. Highlighting the prospects and challenges of nuclear energy can provide a valuable guidance to nuclear newcomers, helping them to make informed decisions about whether to pursue a nuclear power program and how to do so in a safe, secure, and sustainable manner.

Technical Aspect of Nuclear Energy The technical features of nuclear technology determine a nation’s nuclear regulatory structure. For example, the type of reactor technology being used can influence the regulatory structure in terms of safety standards, licensing requirements, and inspection protocols. Different types of reactors, such as pressurized water reactors or boiling water reactors, have unique safety features that must be considered. Additionally, the presence of nuclear fuel cycle facilities, such as uranium enrichment plants or reprocessing facilities, can significantly impact the regulatory structure. These facilities pose unique safety and security risks that require specific regulations and oversight. Furthermore, the handling and storage of nuclear materials, such as spent nuclear fuel or radioactive waste, requires strict regulations to prevent accidents and ensure proper disposal. The potential security risks associated with nuclear facilities and materials, such as theft or sabotage, require additional regulatory measures to prevent unauthorized access and ensure proper security measures are in place. Hence, the development of technical features in nuclear technology may impact the efficacy of soft laws, while hard laws remain the same.9 The technical features of nuclear technology can impact the development and implementation of soft laws in 9

Nuclear hard law and soft law are two different types of legal instruments used to regulate nuclear activities. The main difference between the two is the degree of enforceability. Nuclear hard law refers to legally binding and enforceable rules and regulations that are created by national and international organizations. These laws are typically enacted through formal legislative processes and carry legal sanctions for non-compliance. Examples of nuclear hard laws include international treaties, domestic laws and regulations, and licensing requirements for nuclear facilities. In contrast, nuclear soft law refers to non-binding guidelines, recommendations, and voluntary standards that are developed by non-governmental organizations, industry associations, or international bodies. Soft law is intended to provide guidance and best practices for nuclear activities, but does not carry the force of law. Examples of nuclear soft law include codes of conduct, industry standards, and best practices. Another key difference between nuclear hard law and soft law is their flexibility. Hard laws are typically more rigid and difficult to change than soft laws. Changing hard laws typically requires a formal legislative process, which can be time-consuming and difficult. Soft laws, on the

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several ways. For example, if new technical features emerge that create new safety or security risks, existing soft laws may need to be revised or new guidelines may need to be developed to address these new challenges. Technical advances can make certain soft laws obsolete or less effective, as they may not be able to keep up with the pace of technological change. Meanwhile, hard laws, such as statutes, are legally binding and enforceable. They are typically developed by governments to address specific issues related to nuclear technology, such as safety standards or licensing requirements. While hard laws need to be periodically updated to reflect changes in technology or best practices, their legal force remains mostly unchanged regardless of technical advancements. The technical aspects of nuclear energy must be understood as crucial for nuclear lawmaking process because technical features of nuclear technology can have a significant impact on a nation’s nuclear regulatory structure. To understand nuclear energy, we must look at the atom, the tiniest part of any component.10 The nucleus is the center of an atom, combined by neutrons and protons.11 Neutrons are neutral particles, while protons are positively charged particles.12 An element’s identity is based on the specific combination of neutrons, protons, and electrons in the atoms.13 Nuclear energy is generated through the process of nuclear fission which involves splitting the nucleus of an atom into two smaller nuclei.14 Two components, uranium and plutonium, have variations (isotopes), and when they are hit with a slow-moving neutron, the neutrons will split from one another.15 This process, called fission, creates energy. Since this process occurs inside the nucleus, the energy that is generated is known as nuclear energy.16 It is important to note that “nuclear technology” is comprehensive including both fusion and fission. However, since the only form of nuclear power used for the commercial production of electricity is fission, this book focuses exclusively on the examination of fission technology.17 Though fission and fusion both lead to the production of energy, their applications are different. Fission entails splitting an unstable and dense nucleus into two lighter nuclei, while, in fusion, two light other hand, are more flexible and can be updated more easily as new information becomes available or as technology changes. See Veuchelen (2009). 10 Britannica. Atom. https://www.britannica.com/science/atom. Accessed 19 Mar 2023. 11 Ibid. 12 Ibid. 13 Ibid. 14 Murray and Holbert (2014). 15 Office of Nuclear Energy. Fission and Fusion: What is the Difference?. https://www.energy.gov/ ne/articles/fission-and-fusion-what-difference. Accessed 19 Mar 2023. 16 Ibid. 17 Fusion technology has the potential to produce nuclear energy in a safe and sustainable manner, but it is not yet a fully developed technology. Fusion energy is produced by the fusion of two atomic nuclei to form a heavier nucleus, releasing large amounts of energy in the process. There are a number of promising fusion research projects underway around the world, including the International Thermonuclear Experimental Reactor (ITER) currently under construction in France. If successful, fusion technology could provide a nearly limitless source of clean, sustainable energy for

Technical Aspect of Nuclear Energy

29

nuclei join together, whose combination process releases an enormous amount of energy. Due to its controllability and customizability advantages, fission is used in nuclear power reactors, while fusion is not used because the reaction cannot be easily ignited or controlled. Moreover, creating an environment conducive to fusion is very costly. Current research endeavors into harnessing the prospects of fusion are still in experimental stages. Fission technology is extensively applied in the generation of electricity, in addition to producing atomic weapons.18 The advanced technology of fissioning plutonium or uranium is used to generate electricity and produce atomic weapons, as well.19 On the one hand, a nuclear reactor has the ability to control energy discharge and release. On the other, a nuclear weapon has a destructive consequence as energy discharge is extensively uncontrolled. The two employments of such fissionable splitting can produce significant radioactivity. In nuclear fission, a uranium atom collides with a neutron which causes the unbalanced atom to split.20 Then, the split atom and its neutrons hit other atoms in order to begin a self-sustaining chain reaction.21 Aside from releasing neutrons, this fission process further creates a considerable amount of energy in terms of heat.22 In most of the cases, this heat is used to evaporate water into steam which eventually spins the turbines to produce electricity.23 Uranium powers most of the fission reactors. Compared to coal, uranium can produce 20,000 times more energy.24 This helps nuclear energy to produce not only consistent but to supply a large amount of electricity with comparatively limited amounts of fuel. Generating fuel-grade uranium involves a series of processes such as conversion, mining, and enriching heavy components. These processes help create materials that can sustain a chain reaction and produce nuclear energy.25 Uranium future generations. See World’s largest nuclear fusion reactor promises clean energy, but the challenges are huge. https://www.abc.net.au/news/science/2023-03-19/nuclear-fission-iter-experimentfrance-construction/102050226. Accessed 19 Mar 2023. 18 See Schunck and Regnier (2022). 19 Ibid. 20 US Energy Information Administration. Nuclear explained. https://www.eia.gov/energyexp lained/nuclear/#:~:text=During%20nuclear%20fission%2C%20a%20neutron,itself%20over% 20and%20over%20again. Accessed 19 Mar 2023. 21 Ibid. 22 Ibid. 23 Ibid. 24 When compared on a per-unit basis, the energy output of uranium through nuclear fission is estimated to be around 20,000 times greater than that of coal through combustion. To put this into perspective, consider that a single kilogram of enriched uranium can potentially produce as much energy as burning several million kilograms of coal. This is one of the reasons why nuclear power is often considered a promising source of energy for meeting growing energy demands, particularly in countries where there is a heavy reliance on fossil fuels like coal. See World Nuclear Association. Economics of Nuclear Power. https://world-nuclear.org/information-library/economic-aspects/eco nomics-of-nuclear%20power.aspx#:~:text=Uranium%20has%20the%20advantage%20of,the% 20same%20amount%20of%20coal. Accessed 19 Mar 2023. 25 World Nuclear Association. How is uranium made into nuclear fuel? https://world-nuclear.org/ nuclear-essentials/how-is-uranium-made-into-nuclear-fuel.aspx. Accessed 19 Mar 2023.

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is the most commonly utilized fuel in most fission reactors, whereas some countries have created reactors which use plutonium and other heavy metals. Regardless of what kind of fuel is applied, nuclear power remains one of the most efficient sources of energy. When examining how efficient energy sources are, a commonly used method is the capacity factor, where the average quantity of electricity produced from a source is divided by the highest quantity it can produce. Usually, nuclear power has a capacity factor of over 90%.26 During the fission process, when radioactive waste accumulates, it must be separated from the reactor. One of the central concerns of nuclear energy is nuclear waste management. According to a study from the Massachusetts Institute of Technology (MIT), the US is not optimistic about developing their nuclear energy because of the barrier they have in nuclear waste disposal.27 Therefore, sourcing a solution for long-term waste disposal is politically and technologically complex. As nuclear technology is largely based on fission, hence, nuclear law governs the ownership, storage, transportation, and distribution of the uranium and plutonium isotopes that are inclined with atomic fission. It sets the regulation to the ways the fission needs to be controlled. Furthermore, nuclear energy policy is both international and national regarding a few or all features of the nuclear fuel cycle, such as ore concentration, conversion, uranium mining, enrichment for nuclear fuel, storing and reprocessing spent nuclear fuel, producing electricity by nuclear energy, and disposal of radioactive waste. Policy measures additionally incorporate emission standards, efficiency standards, safety regulations, legislation and fiscal strategies on energy trading, storage and transportation of nuclear waste and materials. We believe the policy measures of nuclear energy go beyond and addresses trade agreements concerning the export and import of electricity, nuclear technology, uranium, and nuclear waste.

Brief History of Nuclear Energy: Lessons on Regulation The technologies related to radiation and nuclear energy date back to Becquerel’s exploration of natural radioactivity in 1896 and Roentgen’s invention of the ray in 1895.28 Albert Einstein’s contribution in 1905 on the “Theory of Relativity” is known as a big footstep for humanity to know the basics of nuclear technology.29 From 1905 until 1930, Einstein’s contribution to nuclear concepts initiated the popularity for scientific studies on atomic physics. As an extension of Einstein’s formulae, 26

Office of Nuclear Energy. What is Generation Capacity?. https://www.energy.gov/ne/art icles/what-generation-capacity#:~:text=The%20Capacity%20Factor&text=A%20plant%20with% 20a%20capacity,of%20the%20time%20in%202021. Accessed 19 Mar 2023. 27 Massachusetts Institute of Technology (MIT) (2018). 28 Radvanyi and Villain (2017). 29 The Guardian. E = mc2 : Einstein’s equation that gave birth to the atom bomb. https://www.thegua rdian.com/science/2014/apr/05/einstein-equation-emc2-special-relativity-alok-jha. Accessed 19 Mar 2023.

Brief History of Nuclear Energy: Lessons on Regulation

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physicists and engineers realized that a change in the mass of an object could be achieved through nuclear fusion and fission. How much energy this mass change produces can be calculated via Einstein’s formula: E = mc2 . It states that the energy (E) contained in an object is equal to its mass (m) multiplied by the speed of light (c) squared. This means that even a tiny amount of mass can contain a tremendous amount of energy. As per this equation, a 1-kg massed object can be converted to 25 × 109 kWh worth of energy, which is roughly equivalent to energy attainable from burning 3 billion kilograms of coal.30 Ernest Rutherford, the New Zealand-born physicist, is best known for his groundbreaking work on radioactivity and the structure of the atom.31 While he did not directly work on the famous equation E = mc2 , his research did contribute to our understanding of the underlying principles behind it. Rutherford’s work focused on the study of atomic nuclei, particularly the behavior of particles within them.32 In the early 1900s, he conducted a series of experiments that led to the discovery of the proton, one of the fundamental particles that make up the nucleus of an atom.33 This work laid the foundation for further research into nuclear physics, including the study of nuclear reactions and the development of nuclear energy.34 Rutherford’s experiments also provided key insights into the relationship between mass and energy, which would later inform the development of nuclear weapons and power plants. James Chadwick is also considered a notable nuclear physicist after Ernest Rutherford. James Chadwick’s discovery of the neutron in 1932 was a crucial step in the development of nuclear energy.35 The neutron is an uncharged subatomic particle that Using this equation, the energy equivalent of 1 kg of mass can be calculated as follows: E = (1 kg) × (299,792,458 m/s) 2 /E = 89,875,517,873,681,764 J. Converting joules to kilowatt-hours, we get: E = 24,965,977,743.800 kWh. This means that a 1-kg mass could theoretically be converted into 25 × 109 kWh worth of energy. As a comparison, burning 3 billion kilograms of coal produces roughly 10 × 109 kWh of energy. So, the amount of energy that could be released from a 1-kg mass is indeed equivalent to the energy that could be obtained from burning billions of kilograms of coal, demonstrating the incredible power contained within even a small amount of mass. The equation played a crucial role in the creation of the nuclear bomb. During World War II, a team of scientists led by J. Robert Oppenheimer developed the first atomic bomb, also known as the Manhattan Project. The bomb worked by splitting the nucleus of an atom, which released a huge amount of energy in the form of an explosion. Following the proliferation of discourse about extending Einstein’s work to the field of energy generation, Einstein grew worried. Einstein conveyed his concern to President Roosevelt with the fear that Hitler can take the initiative to produce an atomic bomb; hence Einstein proposed for a possible weapon for the US. See Britannica. Manhattan Project. https://www.bri tannica.com/event/Manhattan-Project. Accessed 19 Mar 2023; Time. Einstein Feared a Nazi Atom Bomb—But Immigrants Made Sure the U.S. Got There First. https://time.com/5641891/einstein-szi lard-letter/. Accessed 19 Mar 2023; Business Insider. Albert Einstein wrote to the US pleading with the government to build an atomic bomb 80 years ago. Here’s what he said. https://www.businessi nsider.com/albert-einstein-wrote-letter-us-roosvelt-atomic-bomb-2019-8. Accessed 19 Mar 2023. 31 Elwin (1987). 32 Britannica. Rutherford’s nuclear model. https://www.britannica.com/science/atom/Rutherfordsnuclear-model. Accessed 20 Mar 2023. 33 Ibid. 34 Ibid. 35 Britannica. James Chadwick. https://www.britannica.com/biography/James-Chadwick. 30

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has a mass nearly equal to that of a proton, and the discovery helped to explain some of the mysteries of nuclear physics that had been puzzling scientists for years.36 One of the key applications of Chadwick’s discovery was in the development of nuclear reactors. In a nuclear reactor, neutrons are used to initiate a chain reaction that releases energy in the form of heat, which can then be converted into electricity. By understanding the behavior of neutrons, scientists were able to design reactors that could generate power on a large scale. Chadwick’s discovery also helped to pave the way for the development of nuclear weapons.37 The energy released in a nuclear explosion comes from the fission, or splitting, of atomic nuclei, which is initiated by a neutron. Based on the concept of the properties of neutrons, scientists were able to design nuclear weapons that could unleash massive amounts of energy. Thereafter, the improvement of nuclear technology starts. Within the years of 1939 to 1942, the stages of nuclear technology development can be portrayed as the period of “control by secrecy … initiated by scientists.”38 Such “control by secrecy” was significantly extended until 1946 as the military joined scientists to achieve the object of assembling the atomic explosive.39 Energy production through nuclear means was an “accidental by-product” as the only intention to use such technology was circulating with the idea to develop atomic explosives. In such periods, the whole research into nuclear technology was extensively unregulated; any laws did not primarily govern the advancement of the fundamental atomic reactors and the utilization of nuclear weapons. “Little Boy” and “Fat Man,” the two atomic weapons ever released on Japan at Hiroshima and Nagasaki on August 6 and 9 of 1945, respectively, called for an international concern on the utilization of nuclear technology. The overall distress about the potential advantages and grave risks of nuclear vitality prompted earnest worldwide calls to regulate fission technology. After comprehending the devastation caused by nuclear weaponry, researchers and specialists opted to employ such technology solely for peaceful purposes. Close to the end of World War II, preserving global peace and security became a crucial priority, with the need to discuss measures to prevent future global conflicts. On 25 April 1945, fifty (50) nations met in San Francisco, the US, and agreed to undertake activities on maintaining worldwide harmony and security, merging amicable relations among countries, and ensuring social improvement.40 From the part of acting against nuclear weapons, the US adopted the May-Johnson Nuclear Bill in 1945.41 In its first General Accessed 20 Mar 2023. 36 See Amaldi (1984). 37 He was instrumental in the early stages of the Manhattan Project, the U.S. government’s secret program to develop nuclear weapons during World War II. See The Nobel Prize. James Chadwick. https://www.nobelprize.org/prizes/physics/1935/chadwick/biographical/. Accessed 20 Mar 2023. 38 Karim and Munir (2018). 39 Ibid. 40 United Nations. The San Francisco Conference. https://www.un.org/en/about-us/history-of-theun/san-francisco-conference. Accessed 20 Mar 2023. 41 The US adopted the May-Johnson Nuclear Bill in 1945 because it aimed to provide a legal framework for the development and use of nuclear energy for peaceful purposes, such as generating electricity. The bill was also motivated by the potential military applications of nuclear technology,

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Assembly on 10 January 1946, the UN convened the requirement to regulate nuclear technology.42 Nevertheless, neither the UN nor the international community wanted to discourage the utilization of nuclear technology for peaceful purposes. All the world knows that nuclear technology can provide a better future if it is only used for peaceful purposes. The United Nations Atomic Energy Commission (UNAEC) was formed and given the charge to handle the concerns generated with the discovery of atomic energy and address appropriate commitment toward non-proliferation of nuclear weapons.43 The initial proposal of UNAEC in 1946 includes a plan (i.e., the Baruch Plan) which recommends the US to decommission its nuclear weaponry.44 Additionally, it proposes the UN to supervise, guide and monitor the construction of any nuclear power plant in the world.45 However, it is unfortunate to note that the UNAEC loses its functionality due to the absence of consent among the nations. Although the UNAEC was not functioning properly, experts remained positive with the program named as “atoms for peace.” The program further rendered non-proliferation of atomic weapons to sustain the growth and expansion of atomic vitality. Even though the nuclear scientist was promised to utilize such technology only for human good, several military groups backed by the specific governments were still working not only on the commercial development of nuclear energy, but also obtaining the advancement of plutonium-based nuclear weapons.46

as it sought to establish civilian control over the development of atomic energy and prevent the proliferation of nuclear weapons. Additionally, the bill reflected the post-war emphasis on science and technology as a means of promoting progress and enhancing national security. See Atomic Archive. The May-Johnson Bill. https://www.atomicarchive.com/history/manhattan-project/p6s6. html. Accessed 20 Mar 2023. 42 United Nations. International Day for the Total Elimination of Nuclear Weapons. https://www. un.org/en/observances/nuclear-weapons-elimination-day. Accessed 20 Mar 2023. 43 Office of the Historian, US Department of State. The Acheson-Lilienthal & Baruch Plans, 1946. https://history.state.gov/milestones/1945-1952/baruch-plans. Accessed 20 Mar 2023. 44 Ibid. 45 Ibid. 46 After World War II, the United States and the Soviet Union emerged as the two global superpowers, and tensions between the two nations began to rise. This period of intense geopolitical rivalry and ideological conflict, known as the Cold War, lasted from the late 1940s to the early 1990s. During the Cold War, nuclear weapons became a key component of the arms race between the United States and the Soviet Union. Both countries developed and tested increasingly powerful nuclear weapons, and the threat of nuclear war between the two nations loomed large. The concept of Mutually Assured Destruction (MAD) emerged during the Cold War, which stated that the possession of nuclear weapons by both the United States and the Soviet Union created a balance of power that prevented either side from launching a first strike. The idea was that both sides knew that any nuclear attack would result in the total annihilation of both countries, so neither side would dare to initiate a nuclear war. Nuclear weapons became a symbol of power and deterrence during the Cold War. Both the United States and the Soviet Union believed that possessing a large arsenal of nuclear weapons would deter the other side from launching an attack. This led to a massive buildup of nuclear weapons, with both sides seeking to develop and deploy more advanced and powerful nuclear weapons.

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2 New Nuclear Programs: Prospects and Challenges

Today’s world can witness paradoxically dual nature of nuclear technology, among which one is overwhelmingly utilized for peaceful purposes and the other is the utilization that has been carried out to make deleterious weaponry. Such a frame of identity is still the reason for the lack of public support to advance technology. Although humans saw the devastation of atomic weapons, they also experienced the development of nuclear energy for economic, political, and social advancement. Nuclear technology in medical and health industries seems to cure many epidemics and other pharmaceutical complications. Nonetheless, nuclear technology in the energy industry seemed to eradicate poverty by providing sufficient electricity to drive economic growth. Although the contemporary international society is more concerned with the nuclear energy laws and regulations governing safety, security and liability issues, the early global lawmaking on nuclear technology was aimed for the disarmament of nuclear weapons and the improvement of policy that ensures nuclear nonproliferation. Scientists always predicted that nuclear energy could contribute to a much more affordable and reliable electricity solution to the world.47 Hence, their target was to begin the era of nuclear energy production and disarm the atomic weaponry. With the intention to use nuclear technology only for peaceful purposes, the scientists introduced the first nuclear reactor in the 1960s, which can produce only 1 GW (gigawatt) of electricity.48 With the development of scientific exploration, the scientists developed the capacity of the reactor to produce electricity of 100 GW in the 1970s, and ultimately leading toward the advancement of reactor capacity up to 300 GW in the late 1980s.49 As technology continues to advance, nuclear power has emerged as the second-largest provider of low-carbon electricity. Currently, 452 operating reactors generate 2700 TWh of electricity in 2018, accounting for 10% of the global electricity supply.50 This development is attributed to the crucial features of fission technology that have been refined over time. Nuclear energy has significantly developed mainly due to immense research support relating to such technology. Nevertheless, the earliest research on nuclear energy displays a command of military influence. The militaries controlled and dominated major research of nuclear energy. The US firstly sealed the military 47

See Azam et al. (2022). The USA witnessed the pioneering efforts of Westinghouse in designing the very first fully commercial pressurized water reactor (PWR) with a capacity of 250 MWe, known as Yankee Rowe, which commenced operations in 1960 and remained functional until 1992. At the same time, the boiling water reactor (BWR) was developed by the Argonne National Laboratory, and General Electric’s Dresden-1, a 250 MWe BWR, was operational earlier in 1960. A prototype BWR, Vallecitos, was functional between 1957 and 1963. By the close of the 1960s, orders were being placed for PWR and BWR reactor units with a capacity exceeding 1000 MWe. See World Nuclear Association. Outline History of Nuclear Energy. https://world-nuclear.org/information-lib rary/current-and-future-generation/outline-history-of-nuclear-energy.aspx. Accessed 20 Mar 2023. 49 Ibid. 50 See International Energy Agency (IEA). Nuclear Power in a Clean Energy System. https://www. iea.org/reports/nuclear-power-in-a-clean-energy-system. Accessed 20 Mar 2023. 48

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command over experimentation on nuclear energy in 1954 by introducing the Atomic Energy Act (or the McMahon Act) and authorized self-governing and independent Atomic Energy Commission to conduct research activities concerning nuclear energy development. Nevertheless, in practice, the military and the defense branch of the Government retain strong dominance on any nuclear endeavors in the US. The same law enumerates that the US will not assist or share information on the usage of nuclear energy with countries those who have not declared their intention to use such technology only for peaceful purposes.51 Across the Atlantic, the European nations adopted a similar approach. The UK also passed a similar Act (the Atomic Energy Act of 1946) with the Ministry of Supply being responsible for atomic technology advancement.52 Meanwhile, in 1953, US President Dwight Eisenhower presented his “Atom for Peace” speech at the UN General Assembly.53 In his speech, the US requested to the international community to eliminate the terrors of nuclear threats by regulating the application of atomic technology for only peaceful purposes.54 Shortly after the speech, the US and the UK amended the existing laws and regulations, to facilitate the peaceful use of nuclear technology. The US Atomic Energy Act of 1954, for example, established a legal framework for the regulation of civilian nuclear activities and allowed for the sharing of nuclear technology with other countries for peaceful purposes.55 The Act created the Atomic Energy Authority to promote and oversee the peaceful development of nuclear energy. The reason for amending the existing laws and regulations was to support Eisenhower’s vision of using nuclear technology for peaceful purposes, such as the generation of electricity, rather than just for military purposes. The amendments were made to enable the countries to share nuclear technology with other nations; promote the peaceful use of nuclear energy; and ensure the safety and security of civilian nuclear activities.

51

US Atomic Energy Act, 1946, Section 10(a)(1). See Atomic Energy Act of 1946. https://www.ato micarchive.com/resources/documents/deterrence/atomic-energy-act.html. Accessed 20 Mar 2023. 52 Young (2003). 53 IAEA. Atoms for Peace Speech. https://www.iaea.org/about/history/atoms-for-peace-speech. Accessed 20 Mar 2023. 54 Ibid. 55 The Atomic Energy Act of 1946 had certain limitations and problems that needed to be addressed. For example, the Act did not provide for the sharing of nuclear technology with other countries for peaceful purposes. This limited the ability of the United States to promote the peaceful use of nuclear energy, as well as international cooperation in the field of nuclear technology. In addition, the Act granted the AEC broad powers to regulate and control nuclear technology, which some critics argued were excessive and hindered the development of civilian nuclear power. The Atomic Energy Act of 1954 was therefore needed to address these issues and update the legal framework for the peaceful use of nuclear energy. The Act established a clearer distinction between the regulation of nuclear weapons and the regulation of civilian nuclear activities, allowing for the sharing of nuclear technology with other countries for peaceful purposes. Furthermore, the Act created a regulatory framework for the licensing and operation of nuclear power plants, which enabled the growth of civilian nuclear power. The 1954 Act also established a system for compensating individuals who suffered injury or damage as a result of nuclear accidents.

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Meanwhile, the former USSR was the first state to connect a nuclear power plant to an electricity grid. Obninsk located near Moscow provided 5 MW of electricity to residences and businesses in 1954.56 This development of nuclear technology increased public support and the eagerness of countries to use the nuclear technology solely for peaceful purposes. Following the development of such nuclear technology, the UK also initiated the nuclear energy program in Calder Hall in 195657 which was one of the earliest nuclear power plants that produced electricity for commercial benefits. Following the success of nuclear power generation by the UK, the US, and Japan, the use of nuclear technology for electricity generation was widely accepted internationally in the late nineties. Nuclear energy became an excellent alternative to traditional energy sources because of the environment-friendly features and the diversification issues relating to energy security. As a result, the first decade of the twenty-first century experienced a significant improvement of nuclear energy as it serves the economic interest of several countries in satisfying the increasing energy demand. However, the world also experienced nuclear disasters in Chernobyl and Fukushima where concerns over the safety and security of nuclear energy were questioned. The disasters relating to nuclear energy have always made the world aware of having a comprehensive nuclear regulatory framework to deal with the complex issues of this technology. In fact, the atomic power catastrophe at Fukushima Daiichi NPP had a significant and long-term impact on neighboring habitats and community. Primary damages were irreversible due to contamination in the land and groundwater. Upon scrutinizing the scope and magnitude of Fukushima’s case, researchers opined that administrative failures were responsible for magnifying damages to human life more than what the disaster itself could have caused.58 Consequently, most scholars highlighted the importance of constant nexus between the administration, controllers, nuclear resource personnel, and the Nuclear Industrial Safety Agency (NISA) as an industry promoter and controller, as avoidable mistakes leading to the most significant nuclear disaster since Chernobyl.59 More seriously, lack of communication between the stakeholders undermined the purpose of the NISA as a regulator for nuclear safety and security.60 Through these lessons, nuclear administrators worldwide now understand the urgent need for redesigning and reinforcing a compact nuclear administrative, legal and regulatory framework. The Fukushima disaster in 2011 was a wake-up call for the global nuclear industry and the regulators that oversee it. The incident highlighted the need for a more robust and comprehensive nuclear administrative, legal, and regulatory framework 56

IAEA. From Obninsk Beyond: Nuclear Power Conference Looks to Future. https://www.iaea.org/ newscenter/news/obninsk-beyond-nuclear-power-conference-looks-future. Accessed 20 Mar 2023. 57 World Nuclear Association. Nuclear Development in the United Kingdom. https://www.worldnuclear.org/information-library/country-profiles/countries-t-z/appendices/nuclear-developmentin-the-united-kingdom.aspx#:~:text=One%20of%20the%20greatest%20achievement’s,grid%2Dc onnected%20since%20August). Accessed 20 Mar 2023. 58 Thatcher et al. (2015). 59 See Krooth et al. (2015). 60 See Taebi and Mayer (2017); Wang and Chen (2012).

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to ensure that nuclear power is produced safely and sustainably. In the aftermath of the Fukushima disaster, nuclear administrators worldwide took a range of steps to strengthen nuclear safety regulations and oversight. The IAEA created a new framework for nuclear safety and security, called the Integrated Nuclear Safety and Security Management System (INSSMS), which provides a comprehensive and structured approach to nuclear safety management. Many countries have also revised their nuclear regulatory frameworks to improve safety and transparency. For example, in the US, the Nuclear Regulatory Commission (NRC) conducted a comprehensive review of its regulations and processes after Fukushima and implemented new requirements for nuclear power plants to enhance their safety margins. In addition to regulatory changes, the Fukushima disaster has prompted a renewed focus on nuclear safety culture, which emphasizes the importance of individual responsibility, communication, and continuous improvement in ensuring nuclear safety. However, despite these efforts to improve safety culture, the Fukushima disaster had a significant negative impact on public perception of nuclear energy. The release of radioactive materials from the Fukushima plant resulted in widespread fear and concern about the safety of nuclear power, leading to increased scrutiny and opposition to nuclear energy development. This is why we will investigate the public trust issues and debate relating to nuclear energy in the next section.

Social Trust in Nuclear Energy: The Nuclear Debate The atomic accidents and incidents such as Chernobyl, Three Mile Island, and the Fukushima nuclear disaster have instilled in the public a sense of unease regarding the safety of nuclear energy, leading to a decrease in their trust toward it.61 Furthermore, the emergence of cost-effective renewable energy alternatives has reignited stronger community opposition toward nuclear power. Various concerns surrounding the management of nuclear waste have also contributed to the evolving negative public attitudes toward nuclear power over time. Several studies have investigated the factors that influence public acceptance of nuclear energy, identifying attributes such as benefits, risks, trust, and knowledge as explanatory factors.62 However, since most of these studies have focused on specific regions or countries, generalizing their findings and identifying overarching determinants of public perception toward nuclear energy remain a challenging task.63 Prior research on public attitudes toward nuclear power has its limitations, notably its reliance on a binary framework of acceptance or rejection. This approach fails to account for the considerable proportion of individuals who “reluctantly accept” nuclear power for various reasons.64 61

Qiu et al. (2021); Kinsella (2015). Visschers et al. (2011). 63 Kim et al. (2014). 64 Ibid. 62

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The level of receptiveness and willingness of the general public toward embracing atomic energy and exploring its various applications hinges on two fundamental concepts: “perception” and “sharing.” The degree to which atomic energy is embraced by the public is determined by an objective evaluation of the technology and individual perceptions, as well as effective dissemination of positive information and knowledge about it.65 To comprehensively grasp the acceptability of nuclear power, scholars should consider cultural, social, and historical contexts.66 Those residing far from nuclear power plants tend to view atomic energy in light of societal advantages and welfare effects rather than an individual negative perspective, a phenomenon some experts refer to as “reluctant acceptance.”67 Numerous researchers explore the concept of “reluctant acceptance” of nuclear energy in the context of climate change mitigation, which significantly influences the UK public’s disposition toward nuclear power advancements.68 The consensus among researchers is that perceived danger and benefit are the critical determinants of nuclear power acceptability.69 An optimally effective approach to enhance public acceptance of nuclear energy is to emphasize four crucial factors, namely knowledge, trust, risk, and reward, as they account for the significant variations observed in the levels of acceptance across nations. The term “knowledge” in this context pertains to the degree of comprehension among the general populace concerning atomic energy, encompassing its operational intricacies, technological aspects, and facility management.70 The level of public receptivity toward nuclear energy is also intricately tied to the issue of trust. “Trust,” in this context, can be understood as the inclination to entrust those who are responsible for decision-making and implementing policies related to nuclear technology management.71 The Fukushima disaster dealt a severe blow to the public trust in the nuclear authorities, and regaining that trust is a formidable task that takes a significant amount of time.72 Thus, establishing confidence in nuclear power experts and decision-makers becomes critical in augmenting the acceptance of nuclear energy. Furthermore, the acceptability of atomic power is intimately tied to risk factors. Although nuclear disasters are infrequent, their catastrophic impact creates a potent message that nuclear power poses an unprecedented threat, leading to the stigmatization of nuclear technology. In contemporary times, as the fear of terrorist attacks on atomic power plants has heightened, researchers predict that such perceived danger will further hamper the public acceptability of nuclear energy.73 The prevailing negative public perception toward nuclear energy risks can be attributed to the inflexible stance that many hold on the matter. This rigidity is so 65

Visschers et al. (2011). Liu et al. (2008). 67 Corner et al. (2011). 68 Pidgeon et al. (2008). 69 Kim et al. (2014). 70 Assefa and Frostell (2007). 71 Siegrist and Cvetkovich (2000). 72 See Kinsella (2015). 73 See Holdren (2007). 66

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pronounced that even Professor Jakub Handrlica resorted to the use of the “black swans and dragon kings” metaphor to describe the magnitude of the impact of nuclear accidents, which can be beyond estimation.74 These incidents, such as the Chernobyl and Fukushima disasters, are emblematic of the so-called black swans, which have far-reaching consequences for the nuclear industry, despite the readiness of international laws, technologies, and society to reap the numerous benefits of nuclear energy.75 In today’s world, nuclear energy holds great promise in fields such as medicine, agriculture, energy supply, and manufacturing. The long historical process of developing international nuclear law and regulation has resulted in a well-established legal framework that binds states, scientific organizations, and all stakeholders in the nuclear energy industry to ensure the safe and secure utilization of nuclear materials. Thus, although certain aspects of this regime may require review and adjustment, it provides a solid foundation for a safe and prosperous nuclear energy future. The remarkable advancements in science and technology have ushered in a new era of promise for the nuclear energy sector. The development of AI-based nuclear power plants offers a ray of hope in the fight against the looming threat of meltdowns.76 Moreover, the emergence of next-generation nuclear power plants, including fusion reactors and molten salt reactors (MSRs), presents a remarkable opportunity to achieve one hundred percent safe nuclear energy production. These technological innovations are poised to ensure that the tragic accidents that occurred at Fukushima and Chernobyl become a thing of the past, ushering in a new era of unprecedented safety and reliability in the nuclear energy industry. Despite the robust nuclear safety, security, safeguard, and liability regime established by the international community through various agreements, the IAEA has faced criticism due to the increasingly intrusive nature of the international nonproliferation regime. While the IAEA has developed laws and regulations related to its safeguards, the Agency has been unsuccessful in garnering a consensus among world leaders on the universal issue of non-proliferation.77 Therefore, it is imperative to reexamine the IAEA’s role as a regulator and progressively strengthen its safeguards system from essential to comprehensive protocol procedures. The potential

74

Handrlica (2021). Ibid. 76 Suman (2021). 77 Lee and Karim (2022). 75

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solution to this context may lie in exploring new concepts such as “integrated safeguards”78 or “state-level safeguards”79 to ensure the safety and security of nuclear materials. Accordingly, the international community can address the concerns related to non-proliferation while upholding the highest standards of safety and security in the nuclear energy industry. As the developing countries seek to fulfill their energy demand, they may turn to the usage of coal. However, an alternative option is to introduce nuclear energy, which requires a set of guidelines to ensure international regulatory standards are integrated into a country’s national legal framework. Such a framework serves as the foundation for expanding the energy sector, but it cannot be established without revisiting the fundamental theory, objectives, and historical background of international nuclear energy law. By identifying the factors associated with nuclear law, a comprehensive nuclear legal and regulatory framework can be established. While international nuclear energy laws have been developed over a century-long process, many experts believe that global authorities must adapt and incorporate different transitional legal principles to ensure the safety, security, and safeguard of nuclear establishments in recent times.80 As such, a proactive approach is necessary for new nuclear energy-producing countries to ensure they adopt international regulatory

78

“Integrated safeguards” is a term used in the context of nuclear non-proliferation to refer to a comprehensive system of measures and procedures designed to verify that nuclear materials and activities are not being diverted for military purposes. The International Atomic Energy Agency (IAEA) is responsible for implementing integrated safeguards under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and other international agreements. The IAEA uses a variety of tools and techniques to monitor nuclear activities, including inspections, environmental sampling, and analysis of data provided by states. Integrated safeguards are designed to provide assurance to the international community that nuclear activities are being conducted for peaceful purposes, and to detect and deter any attempts to divert nuclear materials or technology to military purposes. The IAEA works closely with states to ensure that they comply with their safeguard’s obligations, and provides support and training to help states develop their own safeguards capabilities. 79 “State-level safeguards” is another term used in the context of nuclear non-proliferation to refer to a set of measures and procedures implemented by individual states to ensure that their nuclear activities are being used exclusively for peaceful purposes. Under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), non-nuclear weapon states are required to conclude safeguards agreements with the International Atomic Energy Agency (IAEA) to verify the peaceful use of nuclear materials and facilities within their territories. These safeguards agreements provide a basis for the IAEA to conduct inspections and verify that nuclear materials and activities are not being diverted for military purposes. However, in addition to these international safeguards, individual states may also implement their own state-level safeguards measures to strengthen the transparency and accountability of their nuclear activities. These measures can include additional inspections, monitoring, and reporting requirements, as well as physical protection and security measures to prevent unauthorized access to nuclear materials and facilities. By implementing state-level safeguards measures, states can provide additional assurance to the international community that their nuclear activities are being used for peaceful purposes, and demonstrate their commitment to nonproliferation and disarmament. In addition, these measures can help to build confidence and trust among states and contribute to regional stability and security. 80 Jenkins et al. (2016); Heffron (2018); Heffron et al. (2018).

Future of Nuclear Energy: Global Perspective

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standards and establish comprehensive national frameworks that meet the highest standards of safety and security in the nuclear energy industry.

Future of Nuclear Energy: Global Perspective Despite some lingering skepticism toward nuclear energy, it is apparent that an increasing number of people are embracing the use of nuclear power as a viable source of energy due to the numerous benefits afforded by fission technology. Firstly, atomic sources are cheaper compared to available alternative sources.81 Despite the challenges of massive initial construction costs, complex processing of the nuclear fuel and complicated waste disposal management process, nuclear energy’s overall long-run expenses are very competitive compared to the cost of carbon-based energy sources, especially the popular ones like gas, coal, and oil.82 Another reason for global acceptance of nuclear energy is its stable energy supply. This makes electricity generation from nuclear reactors a profitable option for many countries.83 Additionally, the ecofriendliness of nuclear energy production has made it an appealing alternative at a time when environmental degradation and the looming climate crisis are major concerns. The recent Russia-Ukraine war has also reemphasized the need for the development of nuclear energy for several reasons.84 In fact, the Russia-Ukraine armed conflict has highlighted the vulnerability of energy supplies that are dependent on foreign sources. This has prompted several countries to reconsider their energy security and look toward domestic sources of energy, including nuclear power.85 Nevertheless, there exists a certain potential of hazards for the environment and human/animal lives associated with the disposal of nuclear waste. Nuclear waste is highly radioactive which can remain dangerous for thousands of years. Exposure to nuclear waste can cause radiation sickness and increase the risk of cancer and other health problems. If not properly disposed, nuclear waste can contaminate the environment and harm plant and animal life. It can also pose a threat to human life, 81

Nuclear power: The safer and cheaper alternative to fossil fuels. https://www.openaccessgover nment.org/nuclear-power-the-safer-and-cheaper-alternative-to-fossil-fuels/102020/. Accessed 22 Mar 2023. 82 Ibid. 83 However, nuclear power faces a formidable hurdle in the form of high capital costs, as securing funding for constructing new nuclear plants in several countries can be a daunting task due to investors’ concerns regarding potential delays, technological glitches, regulatory hurdles, and safety risks. However, such challenges may not be as daunting for state-owned companies or regulated markets that have access to cheap capital, which explains why developing nations exhibit greater enthusiasm for nuclear reactors than their European and American counterparts. See Khatib and Difiglio (2016). 84 Time. As Putin Threatens Nuclear Disaster, Europe Learns to Embrace Nuclear Energy Again. https://time.com/6169164/ukraine-nuclear-energy-europe/. Accessed 22 Mar 2023. 85 Ibid.

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particularly if it enters the food chain. Improper disposal methods, such as storing nuclear waste in unsecured locations, can lead to accidents or intentional acts of terrorism that could result in the release of radioactive material into the environment. Then again, to mitigate these risks, governments and nuclear energy companies have implemented strict regulations and safety measures for the disposal of nuclear waste. There are a variety of disposal methods, such as deep geological repositories and reprocessing, that have been developed to safely store nuclear waste for long periods of time.86 However, there is still debate and controversy over the best methods for disposing of nuclear waste, and concerns about the potential risks and consequences of nuclear waste disposal continue to be a critical issue in nuclear energy policy and public debate. While the present nuclear power generation is mostly Uranium-dependent, which is expected to persist only for a limited period if no other reserve is found, alternatives are available to sustain a far extended period. One such alternative, which also happens to be greener and thus more environmentally salutary, is “Thorium.” In recent, China, India, and Russia have begun paying more attention to Thorium as a means for fueling their reactors.87 In fact, thorium-based nuclear power plants have the potential to produce less long-lived nuclear waste than traditional uraniumbased nuclear power plants. One reason for this is that thorium-based reactors can use a type of nuclear reaction called “breeder” reaction, which converts thorium into uranium-233, a fissile material that can be used as fuel.88 This process produces less waste than the conventional nuclear fission reactions used in uranium-based reactors, which produce highly radioactive spent fuel that must be stored for thousands of years.89 Another reason is that thorium-based reactors can operate at higher temperatures, which can enable more complete fission of the fuel and result in less waste production.90 Additionally, some designs of thorium-based reactors have the potential to be more efficient at burning fuel, resulting in less waste.91 However, it is important to note that thorium-based reactors are still in the experimental phase and have not yet been widely deployed for commercial use. Furthermore, while thorium-based nuclear power has the potential to produce less waste, it is not completely waste-free and would still require careful management and disposal of radioactive waste. Therefore, before Uranium and Thorium reserves are depleted, humans can buy themselves enough time to find cost-competitive and greener ways of generating energy. In this way, nuclear energy can be both a life and environment saver and promote sustainability. 86

See Kurniawan et al. (2022). IAEA. Thorium’s Long-Term Potential in Nuclear Energy: New IAEA Analysis. https://www. iaea.org/newscenter/news/thoriums-long-term-potential-in-nuclear-energy-new-iaea-analysis. Accessed 22 Mar 2023. 88 World Nuclear Association. Thorium. https://world-nuclear.org/information-library/current-andfuture-generation/thorium.aspx. Accessed 22 Mar 2023. 89 Ibid. See also Schaffer (2013). 90 Ibid. 91 Ibid. 87

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Fig. 2.1 Reactors under construction (2022). Source IAEA (IAEA. Under Construction. https:// pris.iaea.org/PRIS/WorldStatistics/UnderConstructionReactorsByCountry.aspx. Accessed 22 Mar 2023)

Nevertheless, as of today, commercial nuclear energy industry adds only a limited portion to the total electricity generation, which is just about 10%.92 Besides, the atomic energy-producing countries in OECD speculate that the present contribution of atomic energy will decrease slowly over the next decade.93 Therefore, experts expect that the rise of nuclear energy and the innovation in nuclear technology will be based on the developing countries, mostly depending on China, India, and Russia.94 However, the hegemony of the established nations in the West over energy resources was being challenged by the burgeoning economic superpowers—Brazil, Russia, India, and China—as fossil fuel prices started to rise. In regulated or controlled energy markets in East Asia, India, and Eastern Europe, substantial fleets of standardized reactors started to be constructed. Many observers agreed that the industry was on the verge of a “nuclear renaissance” due in large part to the ambitious nuclear development plans of Asian nations. The IAEA reported 56 reactors under construction as of 2022 (Fig. 2.1), an increase of over 50% from 2007. The 2011 Fukushima Daiichi nuclear accident undoubtedly had a significant impact on the new nuclear constructions, particularly in Western nations. The oldest nuclear reactors in Germany were promptly shut down, and plans to phase out remain

92

World Nuclear Association. World Energy Needs and Nuclear Power. https://world-nuclear.org/ information-library/current-and-future-generation/world-energy-needs-and-nuclear-power.aspx. Accessed 22 Mar 2023. 93 Ibid. 94 Khatib and Difiglio (2016).

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in place.95 Additionally, plans by Italy to restart its dormant nuclear power program were abandoned.96 While South Korea and France have pledged to lessen their reliance on nuclear energy, other economies like Taiwan, Spain, and Switzerland have recently outlawed the building of new reactors. Japan has been fighting to restart most of its nuclear reactors despite intense public opposition for years.97 Leading nuclear reactor suppliers such as Westinghouse and Areva were forced into bankruptcy and dissolution, respectively, amid all these occurrences.98 However, a number of reliable international organizations (such as IAEA), private businesses, and institutions with ties to the government continue to forecast a steady rise for the sector. Although the amount of electricity produced by nuclear power on a worldwide scale is down from its peak of 17.6% in 1996, it has held steady at 10–11% even after Fukushima Daiichi disaster. Additionally, rather than developed nuclear countries, almost 60% of the expansion is anticipated to come from developing countries, and particularly the countries from Asia.

Challenges of Nuclear Energy: Nuclear Newcomer Perspectives The prospects of nuclear energy in nuclear newcomer countries are influenced by several factors, including economic considerations, energy policy, and public perception. Nuclear newcomers must take these factors into account when assessing the prospects of nuclear energy in their countries, and prepare to address the challenges associated with this form of energy. It is assumed that the future of nuclear energy depends ideally on the political decision-making process and desire for collaboration for a green future. The experts believe that nuclear energy is still a lucrative solution for green energy generation, and there are satisfactory nuclear fuels available at a reasonable expense to assist the global development of the nuclear energy industry.99 It is undeniable that there are 95

World Nuclear Association. Nuclear Power in Germany. https://world-nuclear.org/informationlibrary/country-profiles/countries-g-n/germany.aspx. Accessed 22 Mar 2023. 96 World Nuclear News. Italians do not rule out the future use of nuclear energy. https://www. world-nuclear-news.org/Articles/Italians-do-not-rule-out-future-use-of-nuclear-ene. Accessed 22 Mar 2023. 97 The Japan Times. Nuclear power revival reaches Japan, home of the last meltdown. https://www. japantimes.co.jp/news/2023/03/06/national/nuclear-power-revival/. Accessed 22 Mar 2023. 98 See The New York Times. Westinghouse Files for Bankruptcy, in Blow to Nuclear Power. https:// www.nytimes.com/2017/03/29/business/westinghouse-toshiba-nuclear-bankruptcy.html. Accessed 22 Mar 2023; Outlook. Will India Say No To Risky Nuclear Deals With Bankrupt Nuclear Majors Westinghouse, Areva?. https://www.outlookindia.com/website/story/will-india-say-no-torisky-nuclear-deals-with-bankrupt-nuclear-majors-westinghou/298399. Accessed 22 Mar 2023. 99 See Panina (2020); Karim and Muhammad-Sukki (2022); Office of Nuclear Energy. 3 Reasons Why Nuclear is Clean and Sustainable. https://www.energy.gov/ne/articles/3-reasons-why-nuclearclean-and-sustainable. Accessed 22 Mar 2023.

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tremendous possibilities of nuclear energy advancement in developing and underdeveloped countries, keeping in mind that these countries are in the journey toward the stable economic and financial development. Nevertheless, certain obstacles and challenges would exist to guarantee the best use of atomic innovation. They are as follows:

Regulatory and Legal Concerns In general, nuclear energy is heavily regulated, and newcomers to the field will need to navigate complex regulatory frameworks to obtain licenses and permits to build and operate nuclear power plants. To operate the nuclear plants, every country must have a principal law or a set of laws regarding the venture of nuclear energy. This principal law should include the essential elements of nuclear energy cycle and address the challenges regarding nuclear safety, security, safeguard, and liability. Even underdeveloped or developing countries might need far-reaching regulation/ soft law in addition to the statute/hard law that can fundamentally ensure the safety and security of nuclear power generation. Nevertheless, the administration of every country should clarify the policies and arrangements to address the effect of nuclear regulations, guidelines, and liability obligations. The administration/nuclear regulator ought to clarify strategies that address the effect of atomic security risks and controls. The liability laws and regulations must channel the risk through mandatory insurance coverage and ensure sole and strict liability for the atomic plant operator and several joint liabilities with suppliers.100 Unfortunately, man-influenced calamities in the developing or low-income countries often do not offer ascent to compensatory suit.101 If the newcomers fail to enact any vibrant legal environment to guarantee equity for the nuclear calamities, the probability of safe nuclear energy generation will remain uncertain not only for the newcomers, but also for the existing ones. Nuclear damage does not only hamper the

100

See Karim et al. (2018a); Heffron et al. (2016). There have been many instances where man-made calamities in developing or low-income countries have not led to compensatory suits or adequate compensation for those affected. One example is the Bhopal Gas Tragedy in India in 1984, where a gas leak from a pesticide plant owned by Union Carbide Corporation (now owned by Dow Chemicals) caused the deaths of thousands of people and affected hundreds of thousands more. Despite the scale of the disaster, the victims have received only a fraction of the compensation they are due, and many are still struggling with health problems and disabilities caused by the gas leak. Another example is the oil spill in the Niger Delta region of Nigeria, where oil companies have caused significant environmental damage and health problems for local communities. However, compensation for these communities has been limited and often inadequate, with many people continuing to suffer from the effects of pollution and environmental degradation. These examples highlight the need for greater accountability and responsibility from corporations and governments to ensure that those affected by man-made disasters receive adequate compensation and support.

101

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energy-producing country; rather, it might have a transboundary impact of radioactive contamination. This potentially drags the estimated loss to well over ten billion dollars, which may effectively paralyze the whole economy of a country. A nuclear disaster like Fukushima gives an opportunity to reevaluate—to look back, understanding and assessing even more broadly where, as an individual and as a global citizen, we stand. The goals of energy law should be realigned with progressive and sustainable management of energy resources.102 Moreover, the law relating to the energy industry must concentrate on using increasingly fair, objective, and equitable assessments of the risk associated with disasters. It cannot be denied that upgrading and consolidation of a nuclear regulatory system is not voluntary but a burning need to avert any disaster relating to the nuclear power plant. Activities including the establishment of requirements and guidelines, authorization and inspection of facilities and activities, enforcement of legal and regulatory provisions, demonstration of leadership in achieving safety and security, and assessment of safety performance are necessary to be introduced and implemented to ensure safe nuclear energy generation.

Ensuring Reactor Safety Through Technological Means Ensuring reactor safety through technological means can be a significant challenge to nuclear newcomers for several reasons. Firstly, nuclear power plants and their safety systems are highly complex, with many interdependent technological components. Understanding how to work these components and how to ensure their safety requires significant technical knowledge and expertise, which may be difficult for newcomers to acquire. Secondly, ensuring reactor safety requires highly skilled operators, engineers, and technicians who are trained in the latest safety protocols and technologies. Newcomers to the industry may struggle to find and train the necessary workforce to operate and maintain their nuclear power plants. Thirdly, implementing and maintaining advanced technological safety systems can be costly, and newcomers to the industry may struggle to finance these investments in safety. To solve this, localization of nuclear technology is necessary. To achieve the localization of fission technology, the nuclear newcomers must intend to create, extend and upgrade the universally propelled nuclear energy innovation with the help of different atomic energy-producing countries, such as the US, India, Russia, and Japan. It is undeniable that such a procedure to incorporate and improve nuclear energy technology is difficult as it consists of different phrases of technology introduction, presentation, digestion, and exhibition.103 Nevertheless, imported nuclear technology cannot give proficient creation without the localization and exhibition of such technology. 102

Heffron (2021). Regrettably, there is a dearth of research on the localization of nuclear technology from the viewpoints of social and political sciences. Still, we find this article very useful: Chadda (2009).

103

Challenges of Nuclear Energy: Nuclear Newcomer Perspectives

47

Then again, localization of technology alone may not ensure reactor safety. While localizing technology can help ensure that nuclear power plants are designed and operated in a manner suitable for the local environment and local regulatory requirements, it is only one aspect of ensuring reactor safety. To ensure reactor safety, a comprehensive approach is needed that includes a range of measures, such as (1) implementing a robust design for power plants; (2) complying with the stringent safety protocols; (3) developing skilled workforce; (4) ensuring strict regulatory oversight; and (5) engaging in continuous improvement. Nuclear power plants must be designed to withstand a wide range of natural disasters, equipment failures, and human errors. This requires robust design processes that consider all potential risks and hazards. It must also operate under stringent safety protocols that are regularly reviewed and updated as necessary. These protocols cover everything from equipment maintenance to emergency response procedures. Additionally, nuclear power plants require highly skilled operators, engineers, and technicians who are trained in the latest safety protocols and technologies. This requires investing in education and training programs to ensure that the necessary workforce is available. Then again, without strict regulatory oversight, safe nuclear energy generation cannot be ensured. Regulators must have the necessary resources and expertise to monitor and enforce compliance with safety regulations. Finally, nuclear power plants must be continually monitored and improved to ensure their safety. This requires investing in research and development to identify new technologies and approaches that can enhance safety.

Ensuring the Public Acceptance of Technology As memories of the mishaps at Three Mile Island (1979), Chernobyl (1986), and Fukushima (2011) are fading and concerns on global warming and environment change are increasing, the international community has been progressively and positively supporting the utilization of safe nuclear energy technology with an ideal public assessment.104 Nevertheless, nuclear energy has propelled with more public resistance than any other existing energy sources.105 In general, there are various reasons for a negative public perception of nuclear energy, as mostly we have mentioned them in Section “Social Trust in Nuclear Energy: The Nuclear Debate” of the chapter. One withstanding concern that we have not discussed earlier is the association of nuclear technology with atomic weapons. “Nuclear energy was conceived in secrecy, born in war, and first revealed to the world in horror. No matter how much proponents try to separate the peaceful from the weapons atom, the connection is firmly embedded in the minds of the public.”106 Likewise, some opposition exists since technology is excessively expensive. Another 104

See Valentine and Sovacool (2019); Arndt (2023). Trischler and Bud (2018). 106 Smith (1988). 105

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primary driver for public opposition is the hazardous and complex nature of nuclear technology. Although experts believe that the recent developments in fission technology have made this energy source more lucrative and safer than ever before,107 a great part of the general population is still increasingly opposed to nuclear energy for different attributes. One way to ensure public acceptance of nuclear technology for newcomers is to be transparent about the safety measures and regulations in place. Regularly sharing information about the safety record and performance of the facilities, and involving the community in the decision-making process, can help build trust and understanding. Additionally, investing in research and development of new technologies that address concerns such as waste management can help to mitigate risks. Education and outreach programs can also be effective in helping the public understand the benefits and risks associated with nuclear energy.

Nuclear Waste Treatment In today’s world, the excessive and rapid increase of atomic waste and spent fuel from nuclear energy production are a concern that requires international attention. According to the IAEA, since nuclear power plants began producing electricity in 1954, they have discharged roughly 390,000 metric tons of spent fuel worldwide.108 Around 127,000 metric tons of spent fuel, roughly one-third of the total amount, have been reprocessed, while the remaining two-thirds is currently being stored either for processing or disposal.109 Most of the spent fuel is stored in wet storage within the reactor pools at nuclear power plant sites, but the fuel inside the reactor core is not included in the inventory until it has been discharged.110 Some of the spent fuel has since been transferred to dry storage or centralized wet storage facilities after being cooled for several years.111 At the end of 2016, approximately 263,000 metric tons of spent fuel were in storage.112 Recently adopted policies of the EU and the US expressed negative impression relating to nuclear energy innovation, which brought about growing anxiety on nuclear waste management.113 One of the major problems with nuclear waste treatment is the long-term storage and disposal of high-level radioactive waste. This type of waste, which includes spent nuclear fuel and other highly radioactive materials, remains dangerous for hundreds of thousands of years and requires secure 107

Karim and Muhammad-Sukki (2022). IAEA. Status and Trends in Spent Fuel and Radioactive Waste Management. https://www-pub. iaea.org/MTCD/Publications/PDF/PUB1963_web.pdf. Accessed 25 Mar 2023. 109 Ibid, p. 47. 110 Ibid. 111 Ibid. 112 Ibid. 113 Karim et al. (2018b). 108

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and isolated storage to prevent the release of radioactive materials into the environment. Another problem is the lack of a permanent repository for high-level nuclear waste. Currently, most countries rely on temporary storage solutions, such as dry cask storage or spent fuel pools, which are not designed for long-term storage and may not be suitable for the amount of waste generated by nuclear power plants.114 Furthermore, the cost of managing and disposing of nuclear waste can be high.115 The cost of building and operating a permanent repository, as well as the cost of transportation and security, can be substantial which may add to the overall cost of nuclear energy. Additionally, the public opposition to the permanent nuclear waste repository can be seen in the case of the proposed Yucca Mountain nuclear waste repository in the US. The project, which aimed to construct a deep geological repository for the storage of spent nuclear fuel and other high-level radioactive waste, faced significant opposition from environmental groups and local communities in Nevada, where the repository was planned to be built.116 The opposition was based on concerns about the potential environmental and health risks in connection to transporting and storing nuclear waste in their communities, as well as the potential impact on property values and tourism in the region. As a result, the project faced numerous legal challenges and delays, leading to its cancelation in 2011. Nuclear newcomers must be aware of these challenges and be prepared to address them to ensure the safe and responsible use of nuclear energy. Hence, robust rules, guidelines, policies, and plans are an absolute necessity for the safe disposal of nuclear waste not only to guarantee the security of communities from radiation, but also to create a positive public perception. As the legislatures of nuclear newcomers appear enthusiastic about increasing the contribution of nuclear energy to their national grid in the coming years, there are inquiries about their strategies to manage the expanding amount of atomic waste. To improve nuclear energy, it is crucial for nuclear newcomers to define measures that effectively address the complex issues surrounding nuclear waste management.

Concerns About the Security of Nuclear Material The security of nuclear material is a critical concern in the field of nuclear energy due to the potential for its misuse by state or non-state actors. One major concern is nuclear proliferation, which refers to the spread of nuclear weapons and other nuclear materials to countries or non-state actors not authorized to possess them. This can 114

United States Nuclear Regulatory Commission. Spent Fuel Storage in Pools and Dry Casks Key Points and Questions & Answers. https://www.nrc.gov/waste/spent-fuel-storage/faqs.html. Accessed 25 Mar 2023. 115 World Nuclear Association. Storage and Disposal of Radioactive Waste. https://world-nuc lear.org/information-library/nuclear-fuel-cycle/nuclear-waste/storage-and-disposal-of-radioactivewaste.aspx. Accessed 25 Mar 2023. 116 See Johnson (2023).

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occur through either the theft or illicit trafficking of nuclear materials, or the diversion of nuclear materials from peaceful uses to military or other unauthorized uses. The expanding terrorist activities are another concern that nuclear newcomers must understand. It is important to note that the primary nuclear fuel, Uranium-235, used in nuclear power plants is only about 3–5% for producing electricity.117 The use of 3% of Uranium-235 is far below its usage in the creation of atomic weapons (over 90%).118 Furthermore, the fission technology used in nuclear electricity creation has different control innovations and technical procedures, which are vastly different from the atomic weapons technology.119 Therefore, there is no significant risk of nuclear proliferation from nuclear energy. Nonetheless, the increasing public perception and inquiries on the security issues of nuclear materials lead to negative observations regarding the safety of nuclear energy within the country. However, nuclear facilities, such as power plants and research reactors, are vulnerable to attacks that could result in a release of radioactive materials and cause considerable damage to the facility and surrounding area. To address these concerns, the international community has developed legal and policy frameworks, including the IAEA safeguards, the Treaty on the NonProliferation Treaty of Nuclear Weapons (NPT), and the Convention on the Physical Protection of Nuclear Material (CPPNM), among others. These frameworks establish standards and guidelines for the physical protection of nuclear materials, the detection and prevention of nuclear proliferation, and the response to nuclear security incidents. Notably, nuclear newcomers must ratify the NPT and promise to comply with the objectives endorsed in the Treaty. Such commitments include prevention and expansion of atomic weapons, advancing the process of nuclear demobilization, and promoting the peaceful use of nuclear technology. Nuclear newcomers should also enact and implement explicit policies or measures in the form of legislation, guidelines, and regulations relating to the export and import of nuclear fuel and incorporate provisions of nuclear non-proliferation.

117

World Nuclear Association. How is uranium made into nuclear fuel? https://world-nuclear. org/nuclear-essentials/how-is-uranium-made-into-nuclear-fuel.aspx#:~:text=This%20increases% 20the%20uranium%2D235,not%20have%20to%20be%20enriched. Accessed 25 Mar 2023. 118 World Nuclear Association. Uranium Enrichment. https://world-nuclear.org/informationlibrary/nuclear-fuel-cycle/conversion-enrichment-and-fabrication/uranium-enrichment.aspx. Accessed 25 Mar 2023. 119 The Hill. Time to stop confusing nuclear weapons with nuclear power. https://thehill.com/ blogs/pundits-blog/energy-environment/333329-time-to-stop-confusing-nuclear-weapons-withnuclear/#:~:text=Nuclear%20weapons%20today%20involve%20fusing,heat%20that%20turns% 20steam%20turbines. Accessed 25 Mar 2023.

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Natural Hazards and Possible Disaster Nuclear plants around the world are typically built near large lakes, rivers, or oceans.120 Natural hazards, such as earthquakes, floods, tsunamis, and extreme weather events, have the potential to cause significant damage to nuclear facilities which would result in a release of radioactive materials.121 These events can cause physical damage to nuclear facilities and disrupt normal operations, which can lead to a loss of cooling for the nuclear fuel and a release of radioactive materials. One of the main concerns with natural hazards is the potential for a nuclear accident, such as a meltdown or a release of radioactive materials. This can occur either if the nuclear facility is not designed to withstand the forces of the natural hazard, or if the facility’s safety systems fail to operate as intended during the event. Another concern is the damage to the spent fuel pools, which, if not properly cooled, may lead to a fire that can release radioactive material. Furthermore, if the natural disaster causes the release of radioactive material, it can contaminate the surrounding area and affect the health and well-being of the population. To address these concerns, nuclear facilities are required to conduct a comprehensive safety assessment known as a Probabilistic Safety Assessment (PSA) which evaluate the facility’s ability to withstand natural hazards and the potential consequences of an accident.122 These assessments are regularly updated to reflect new information and to ensure that the facility is designed and operated in a way that minimizes the risk of a nuclear accident. In addition, nuclear facilities are required to have emergency plans in place to respond to natural disasters and other accidents.123 These plans typically include the procedures for evacuating personnel, notification of authorities, and measures to minimize the release of radioactive materials.

120

Nuclear plants require a large amount of water for cooling purposes, which is why they are often built near large bodies of water such as lakes, rivers, or oceans. The water is used to cool the nuclear reactors and prevent them from overheating, which can lead to a potential nuclear disaster. Additionally, water is also needed to generate steam that drives the turbines to produce electricity. Therefore, the proximity to a water source is an important factor when considering the location of a nuclear plant. See World Nuclear Association. Cooling Power Plants. https://www.world-nuclear.org/inform ation-library/current-and-future-generation/cooling-power-plants.aspx. Accessed 26 Mar 2023. 121 One example of a natural disaster causing damage to a nuclear facility is the Fukushima Daiichi nuclear disaster in Japan in 2011. An earthquake and tsunami caused significant damage to the nuclear power plant, including the cooling systems, which led to a release of radioactive materials. The disaster resulted in the evacuation of thousands of people and caused widespread environmental and economic damage. The Fukushima Daiichi disaster serves as a reminder of the importance of designing and constructing nuclear facilities to withstand potential natural hazards and having effective emergency plans in place to minimize the impact of such events. 122 See Zhou et al. (2021). 123 See Ohba et al. (2021).

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Nuclear Energy’s Low Economic Competitiveness In general, non-renewable energy sources are inexpensive. On the one hand, the initial expenditure and the investment of the fossil fuel ventures are minimal, and the period of development and construction of the power plant is moderate. On the other, the expenditures of nuclear energy are high and the development timeframe is lengthy. Nuclear energy projects also contain severe monetary and financial risks.124 As a result, activities and plans relating to nuclear energy are generally considered non-effective for a short-term project compared to coal, oil, and gas derivatives energy generation. Therefore, although nuclear energy has long been considered a low-carbon and reliable source of electricity, it has also been criticized for its higher costs and lower economic competitiveness compared to other forms of energy. Another factor is the increasing competition from other forms of energy, such as renewable energy sources, which have seen a significant decline in costs recently. Renewable energy sources, such as solar and wind, have become increasingly costcompetitive with nuclear energy, and in many cases, are cheaper to produce. In addition, the uncertainty in regulations and policies of the countries contributes to the low economic competitiveness of nuclear energy.125 The changes in regulations and policies can increase the construction and operational costs of nuclear power plants which make it difficult for investors to predict the return on their investment. Furthermore, the public opposition to nuclear energy can also make it more difficult to secure the necessary permits and approvals for new nuclear power projects, which can add to the costs and delays associated with building and operating nuclear power plants.126

Supply of Uranium Resources As uranium is a critical resource for the operation of nuclear power plants, a shortage of uranium resources could have significant implications for the future of nuclear energy. In general, there is no global uranium shortage as of 2023.127 However, the 124

Barkatullah and Ahmad (2017); Kharitonov and Kosterin (2017); Portugal-Pereira et al. (2018). See Fahring (2010). 126 One such example of public opposition was witnessed during the construction of Kudankulam Nuclear Power Plant in India. Protests and demonstrations against the project began in 2011 and continued for several years, resulting in legal challenges and delays. In 2013, the Supreme Court of India allowed the project to proceed, but the protests continued. Despite these challenges, the Indian government continued with the project, and the first reactor began operations in 2013. See Hindustan Times. A decade on, Kudankulam nuclear plant protesters say still face ordeal. https://www.hindustantimes.com/india-news/a-decade-on-kudankulam-nuclear-plantprotesters-say-still-face-ordeal-101654455406226.html. Accessed 26 Mar 2023. 127 Forbes. Uranium Supply Isn’t The Crisis In The Nuclear Industry. https://www.forbes.com/ sites/llewellynking/2020/06/08/uranium-supply-isnt-the-crisis-in-the-nuclear-industry/?sh=1c2 f88c514f4. Accessed 26 Mar 2023. 125

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demand for uranium can vary based on factors such as the growth of nuclear power generation and geopolitical events that affect the supply and demand of nuclear fuel. Additionally, some countries may face local shortages or difficulties in securing adequate supplies of uranium due to such factors as regulatory constraints or limited domestic production. One of the main concerns with uranium resources is that they are concentrated in a small number of countries, which can make them vulnerable to supply disruptions. According to a report from the World Nuclear Association (WNA), approximately two-thirds of the world’s uranium production from mines comes from Kazakhstan, Canada, and Australia.128 Additionally, because the extraction and processing of uranium can be complex and environmentally damaging, there are concerns about the sustainability of current mining practices.129 Another concern is the increasing demand for uranium as more countries turn to nuclear energy to meet their energy needs. This demand, combined with the limited availability of uranium resources, could lead to supply constraints and higher prices for uranium, which could make nuclear energy less economically competitive.130 Furthermore, the uranium enrichment process is also subject to proliferation risks. The process can be used for both peaceful and military purposes, and the access to the technology and material can be used to develop nuclear weapons. To address these concerns, the international community is working to promote the sustainable and responsible extraction and use of uranium resources.131 Moreover, the recycling of used nuclear fuel and the development of new reactor technologies that can use alternative fuel sources, such as thorium, are being considered as potential solutions to mitigate the shortage of uranium resources. Nuclear newcomers must be aware of these challenges and consider alternative options such as recycling of used nuclear fuel and the development of new reactor technologies that can use alternative fuel sources, such as thorium, to supply the uranium resources.

128

World Nuclear Association. World Uranium Mining Production. https://world-nuclear.org/inf ormation-library/nuclear-fuel-cycle/mining-of-uranium/world-uranium-mining-production.aspx. Accessed 26 Mar 2023. 129 See Dahl and Kuralbayeva (2001). 130 Moors and Keen (2022). 131 The International Atomic Energy Agency (IAEA) assists countries in developing policies and regulatory frameworks to ensure the safe and sustainable extraction and utilization of uranium. The Uranium Producers of America (UPA), an industry association representing US uranium producers, also advocates for responsible uranium extraction and use, including environmental stewardship, worker safety, and community involvement. The World Nuclear Association (WNA), a global industry organization promoting responsible nuclear technology use, supports sustainable and responsible uranium extraction and usage, while also encouraging the development of advanced nuclear technology to enhance efficiency and safety.

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Conclusion In conclusion, the development of nuclear energy in newcomer countries presents both prospects and challenges. On the one hand, nuclear energy can provide a reliable and low-carbon source of electricity, which is crucial for economic development and reducing dependence on fossil fuels. On the other, there are several challenges that must be addressed, including the excessive cost of building and maintaining nuclear power plants, the risk of nuclear accidents, negative public perception, and the issue of nuclear waste disposal. Further, newcomer countries may not have the necessary infrastructure, expertise, or regulatory frameworks in place to effectively develop and manage nuclear energy. Overall, careful consideration of these prospects and challenges is necessary to ensure that the development of nuclear energy in newcomer countries should be conducted in a responsible and sustainable manner. In addition to the technical and economic challenges of developing nuclear energy, newcomer countries may face legal challenges in terms of establishing a regulatory framework for nuclear energy. Nuclear law governs the use of nuclear energy and encompasses a range of issues, including safety, security, waste management, and liability. The development of nuclear energy in a newcomer country may require the establishment of a new regulatory body or the strengthening of existing institutions to ensure that the country’s nuclear program follows international standards and agreements. This can be a complex and time-consuming process, which may require the assistance of international organizations such as the IAEA or other countries with established nuclear programs. In summary, the development of nuclear energy in newcomer countries is not only a technical and economic challenge, but also a legal one. Eventually, these countries must have a proper legal framework that ensures safety and security and regulates the liability issues.

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century. https://www-pub.iaea.org/MTCD/publications/PDF/P1500_CD_Web/htm/pdf/poster/ 3P01_S.%20K.%20Chadda.pdf. Accessed 23 Mar 2023 Corner A, Venables D, Spence A, Poortinga W, Demski C, Pidgeon N (2011) Nuclear power, climate change and energy security: exploring British public attitudes. Energy Policy 39(9):4823–4833 Dahl C, Kuralbayeva K (2001) Energy and the environment in Kazakhstan. Energy Policy 29(6):429–440 Elwin ML (1987) Rutherford. Endeavour 11(3):133–136. https://doi.org/10.1016/0160-932 7(87)90201-8 Fahring TL (2010) Nuclear uncertainty: a look at the uncertainties of a US nuclear renaissance. Texas Environ Law J 41:279 Handrlica J (2021) Black swans, dragon kings and the uncertainty in international nuclear law. J World Energy Law Bus 14(1):25–37 Heffron RJ (2018) Energy law for decommissioning in the energy sector in the 21st century. J World Energy Law Bus 11(3):189–195 Heffron RJ (2021) What is energy law? In: Energy law: an introduction. SpringerBriefs in law. Springer, Cham. http://doi.org/10.1007/978-3-030-77521-6_1 Heffron RJ, Ashley SF, Nuttall WJ (2016) The global nuclear liability regime post Fukushima Daiichi. Prog Nucl Energy 90:1–10 Heffron RJ, Rønne A, Tomain JP, Bradbrook A, Talus K (2018) A treatise for energy law. J World Energy Law Bus 11(1):34–48 Holdren JP (2007) Threats to civil nuclear-energy facilities. In: Science and technology to counter terrorism: proceedings of an Indo-U.S. workshop. The National Academies Press, Washington DC. http://doi.org/10.17226/11848 IAEA (2020) Management of nuclear power plant projects. In: IAEA nuclear energy series no. NG-T-1.6. https://www-pub.iaea.org/MTCD/publications/PDF/PUB1868E_web.pdf. Accessed 17 Mar 2023 Jenkins K, Heffron RJ, McCauley D (2016) The political economy of energy justice: a nuclear energy perspective. In: Van de Graaf T, Sovacool BK, Ghosh A, Kern F, Klare MT (eds) The Palgrave handbook of the international political economy of energy. Palgrave Macmillan, London, pp 661–682 Johnson M (2023) Defining interim storage of nuclear waste. Northwest Univ Law Rev 117(4):1177– 1212 Karim R, Muhammad-Sukki F (2022) Artificial Intelligence (AI) in the nuclear power plants: who is liable when AI fails to perform. In: Taghizadeh-Hesary F, Zhang D (eds) The handbook of energy policy. Springer Nature, Singapore, pp 1–21 Karim R, Munir AB (2018) A historical overview of nuclear energy regulations in ASEAN. SEJARAH J Dept Hist 27(1):11–25 Karim R et al (2018a) Legal and regulatory development of nuclear energy in Bangladesh. Energies 11(10):2847 Karim R et al (2018b) Nuclear energy development in Bangladesh: a study of opportunities and challenges. Energies 11(7):1672 Kharitonov VV, Kosterin NN (2017) Criteria of return on investment in nuclear energy. Nucl Energy Technol 3(3):176–182 Khatib H, Difiglio C (2016) Economics of nuclear and renewables. Energy Policy 96:740–750 Kim Y, Kim W, Kim M (2014) An international comparative analysis of public acceptance of nuclear energy. Energy Policy 66:475–483 Kinsella W (2015) A question of confidence: nuclear waste and public trust in the United States after Fukushima. In: Hindmarsh R, Priestley R (eds) The Fukushima effect. Routledge, New York, pp 243–266 Krooth R, Edelson M, Fukurai H (2015) Nuclear tsunami: the Japanese government and America’s role in the Fukushima disaster. Lexington Books

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Kurniawan TA, Othman MHD, Singh D, Avtar R, Hwang GH, Setiadi T, Lo WH (2022) Technological solutions for long-term storage of partially used nuclear waste: a critical review. Ann Nucl Energy 166:108736 Lee EYJ, Karim R (2022) Denuclearization of the Korean peninsula. In: The US-DPRK peace treaty: a commentary. Springer Nature, Singapore, pp 53–72 Liu C, Zhang Z, Kidd S (2008) Establishing an objective system for the assessment of public acceptance of nuclear power in China. Nucl Eng Des 238(10):2834–2838 Massachusetts Institute of Technology (MIT) (2018) The future of nuclear energy in a carbonconstrained world, p 101. https://energy.mit.edu/wp-content/uploads/2018/09/The-Future-ofNuclear-Energy-in-a-Carbon-Constrained-World.pdf. Accessed 19 Mar 2023 Moors C, Keen K (2022) Nuclear revival buoys uranium sector, but new mines not on horizon. https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headli nes/nuclear-revival-buoys-uranium-sector-but-new-mines-not-on-horizon-72602064. Accessed 26 Mar 2023 Murray R, Holbert KE (2014) Nuclear energy: an introduction to the concepts, systems, and applications of nuclear processes. Elsevier, pp 15–30 Ohba T, Tanigawa K, Liutsko L (2021) Evacuation after a nuclear accident: critical reviews of past nuclear accidents and proposal for future planning. Environ Int 148:106379 Panina OGV (2020) Prospects of nuclear energy development in Asia: comparison with “green energy.” Int J Energy Econ Policy 10(6):123–131 Pidgeon NF, Lorenzoni I, Poortinga W (2008) Climate change or nuclear power—no thanks! A quantitative study of public perceptions and risk framing in Britain. Glob Environ Change 18(1):69–85 Portugal-Pereira J et al (2018) Better late than never, but never late is better: risk assessment of nuclear power construction projects. Energy Policy 120:158–166 Qiu H, Weng S, Wu MS (2021) The mediation of news framing between public trust and nuclear risk reactions in post-Fukushima China: a case study. J Risk Res 24(2):167–182 Radvanyi P, Villain J (2017) The discovery of radioactivity. C R Phys 18(9–10):544–550 Schaffer MB (2013) Abundant thorium as an alternative nuclear fuel: important waste disposal and weapon proliferation advantages. Energy Policy 60:4–12 Schunck N, Regnier D (2022) Theory of nuclear fission. Prog Part Nucl Phys 125:103963 Siegrist M, Cvetkovich G (2000) Perception of hazards: the role of social trust and knowledge. Risk Anal 20(5):713–720 Smith KR (1988). Perception of risks associated with nuclear power. Energy Environ Monit 4(1):61– 70, 62 Suman S (2021) Artificial intelligence in nuclear industry: chimera or solution? J Clean Prod 278:124022 Taebi B, Mayer M (2017) By accident or by design? Pushing global governance of nuclear safety. Prog Nucl Energy 99:19–25 Thatcher A, Vasconcelos AC, Ellis D (2015) An investigation into the impact of information behavior on information failure: the Fukushima Daiichi nuclear power disaster. Int J Inf Manage 35(1):57– 63 Thomas S (2017) China’s nuclear export drive: Trojan Horse or Marshall plan? Energy Policy 101:683–691 Thomas S (2018) Russia’s nuclear export programme. Energy Policy 121:236–247 Trischler H, Bud R (2018) Public technology: nuclear energy in Europe. Hist Technol 34(3–4):187– 212 Valentine SV, Sovacool BK (2019) Energy transitions and mass publics: manipulating public perception and ideological entrenchment in Japanese nuclear power policy. Renew Sustain Energy Rev 101:295–304 Veuchelen L (2009) The legal value of general principles, technical norms and standards in European nuclear safety law: the imbalance between soft and hard law and the need for global regulatory governance. Eur Energy Environ Law Rev 18(4):215–228

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Visschers VH, Keller C, Siegrist M (2011) Climate change benefits and energy supply benefits as determinants of acceptance of nuclear power stations: investigating an explanatory model. Energy Policy 39(6):3621–3629 Wang Q, Chen X (2012) Regulatory failures for nuclear safety—the bad example of Japan— implication for the rest of world. Renew Sustain Energy Rev 16(5):2610–2617 World Nuclear Association (2022) Emerging nuclear energy countries. https://world-nuclear.org/ information-library/country-profiles/others/emerging-nuclear-energy-countries.aspx. Accessed 17 Mar 2023 Young W (2003) Atomic energy: from “public” to “private” power-the US, UK and Japan in comparative perspective. In: Annales historiques de l’électricité, pp 133–153. https://www.cairn.info/ revue-annales-historiques-de-l-electricite-2003-1-page-133.htm. Accessed 20 Mar 2023 Zhou T, Modarres M, Droguett EL (2021) Multi-unit nuclear power plant probabilistic risk assessment: a comprehensive survey. Reliab Eng Syst Saf 213:107782

Chapter 3

The Global Quest for Nuclear Safety, Security, Safeguard, and Liability: An Analysis of International Legal and Regulatory Framework for Nuclear Energy

Introduction The analysis presented in the first two chapters of this book critically underscores the importance of establishing a robust legal and regulatory framework to ensure the socioeconomic well-being of a nation that possesses nuclear energy resources. Nevertheless, to craft a comprehensive legal and regulatory framework, it is essential to revisit the fundamental theories and objectives of nuclear energy law. By identifying the key factors and components that underpin nuclear law, we can create an effective and efficient system that seamlessly integrates with a nation’s broader legal framework, allowing it to function at maximum capacity. Nuclear-related international organizations, such as IAEA, NEA, Euratom, and OECD in their different series of publications, have designed and specifically mentioned the essential elements and associations necessary to formulate a comprehensive legal nuclear energy framework. Such publications are known as international nuclear laws and regulations, practices and customs.1 At this stage of discussion, it is important to note that several international guidelines on nuclear law clarify the difference between international and national atomic law. Nevertheless, it is undeniable that international nuclear laws have a positive impact on the drafting of a comprehensive national nuclear law.2 Hence, looking into such references, international laws 1

The framework of nuclear laws, regulations, practices, and customs draws upon a combination of legally binding treaties and conventions, as well as non-binding guidance and instruments developed by international organizations, as mentioned in the main text. While a distinction between these instruments exists, often characterized as a dichotomy between “hard” and “soft” law, both are essential to ensuring the safety and security of nuclear activities and facilities worldwide. These instruments are founded on principles developed over time to promote the peaceful use of nuclear energy. 2 Stoiber et al. (2010), pp. 1–8 in general, it is unlikely that national nuclear law can be crafted without some degree of harmonization and changes in order to reflect the principles and obligations of international nuclear law. International nuclear law sets certain norms, standards, and requirements for the safe and secure use of nuclear energy, and national laws must align with these © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 R. Karim and E. Y. J. Lee, Navigating Nuclear Energy Lawmaking for Newcomers, International Law in Asia, https://doi.org/10.1007/978-981-99-5708-8_3

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such as conventions, regulations, guidelines, and customs help to understand and formulate a theoretical framework for nuclear newcomers; and to recommend the essentials to develop a comprehensive nuclear regulatory regime in terms of safety, security, safeguards, and liability. This chapter addresses international nuclear law which offers a comprehensive analysis of the historical and analytical development of nuclear regulations spanning the past six decades. Given the intricate nature of nuclear energy technology, experts have invested considerable time and resources to establish legal standards to govern its use. The chapter distills the fundamental principles of international nuclear regulations that are essential to understand the regulatory framework for any new nuclear energy producer. The chapter begins by highlighting the international legal instruments on nuclear law that is relevant to nuclear safety, security, safeguards, and liability. It also reviews the roles and responsibilities of nuclear energy-producing states, operators, and regulatory bodies. In addition, the chapter explores the regulatory measures necessary for new countries joining the global regime for the peaceful use of nuclear energy to meet the rising demand for electricity. International authoritative bodies on atomic energy have developed guidelines to manage various situations throughout the lifecycle of a nuclear power plant. This chapter further discusses some of these guidelines and their implications for nuclear regulation.

International Nuclear Law: Scope and Objective International law is a system of legal principles and norms, established by custom or a treaty and recognized by nations as binding in their relations with one another.3 It deals with issues and disputes that transcend national borders and involve more than one country. Just like national law, international law is divided into public and private law. However, their essence differs quite a lot from what we are used to on a national level. International public law, also known as public international law, is basically a set of legal principles, rules, and norms that govern the relationships and interactions between states. It sometimes regulates the transnational activities of non-state actors.4 It is concerned with issues that affect the international community as a whole, such as the use of force, human rights, trade, and the environment. This legal framework also

international norms and principles. However, the extent of the necessary harmonization and changes may vary depending on the specific legal system and the international instruments that apply to a particular country. Some countries may already have legal frameworks that align closely with international nuclear law, while others may need to make more significant changes to comply with their international obligations. 3 Koskenniemi (2006). 4 See generally Von Bogdandy et al. (2017).

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prescribes moral duties, liabilities, and privileges of one country over another, emphasizing the principle of sovereign equality.5 This principle ensures that each sovereign state possesses the same rights as all other states.6 In this course, international law governs relations between states in a just and equitable manner. International organizations like the United Nations (UN) play a pivotal role in the development of universal international law by codifying customary law into international treaties. The UN establishes, develops, and enforces various layers of international law. Public international law relating to nuclear energy encompasses various aspects of nuclear activities, including nuclear safety, security, nonproliferation, peaceful uses of nuclear energy, liability, and environmental protection. It is based on treaties, conventions, and other agreements negotiated among countries and international organizations, such as the IAEA. Its primary goal is to ensure the safe and peaceful use of nuclear energy, while preventing its misuse for military purposes or other harmful activities. Meanwhile, international private law (also known as conflict of laws or private international law) is a branch of law that deals with the legal issues arising from international private relationships. It concerns the rules governing the rights and obligations of individuals, companies, and other legal entities that have cross-border connections, e.g., when a person or business has dealings with parties in different countries or when there is a dispute involving parties from different countries. International private law primarily aims to determine which legal system should apply in a given situation and to resolve conflicts of laws that arise in cross-border situations. In the context of nuclear energy, international private law may refer to the legal principles and rules that apply to private parties (e.g., individuals, corporations) engaged in cross-border transactions related to nuclear energy, such as nuclear fuel supply contracts, construction contracts for nuclear power plants, and financing agreements for nuclear projects. These transactions involve parties from different countries, which may thus require the application of rules from multiple legal systems. Some of the relevant legal issues in this area include jurisdiction, choice of law, and enforcement of judgments. The origins of international law vary significantly from what we are accustomed to seeing in national legislation. While national legislation typically derives its authority from statutes, laws, common law, and case law, the sources of international law are primarily treaties, conventions, and customary practices that are recognized and accepted as binding rule by the international community. The development of international law is also shaped by the decisions and opinions of international courts and tribunals, as well as by the actions and practices of states in their relations with one another. Article 38 of the Statute of the International Court of Justice (ICJ) recognizes five sources of international law: treaties between states; customary international law

5 6

See Warbrick (2002). Ibid.

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arising from state practice; general principles of law accepted by civilized nations; and legal judgments and writings of “the most highly qualified publicists.”7 Similarly, the origins of international nuclear law are treaties, general principles, and judicial decisions. A country developing nuclear energy must follow the substantive convention on nuclear power and the principles of international nuclear law to support the global movement for the peaceful use of nuclear materials. Limited impact of international nuclear law on domestic legislation can negatively influence on the safety and security of nuclear power generation in a region.8 The significance of international laws, including the non-binding technical guidelines and recommendations produced by international organizations, is on the rise. The ICJ recognized such trend in its interpretation of an agreement between parties in the Pulp Mills on the River Uruguay case. The Court stated that: “not being formally binding, are, to the extent they are relevant, to be taken into account by the State so that the domestic rules and regulations and the measures it adopts are compatible (‘con adecuación’) with those guidelines and recommendations.”9 Nuclear power holds great promise in fields ranging from medicine and agriculture to energy supply and manufacturing. However, it is important to recognize that nuclear technology also poses significant risks to human health and the environment, which must be handled with great caution. Hence, ensuring that international regulatory standards for nuclear safety are incorporated into national legal frameworks is crucial.10 While international law provides guidance on how states should act in various circumstances, whether a country follows these laws depends on their interests and capabilities. States make cost–benefit decisions, considering both reputational consequences and moral obligations when deciding whether to comply with or retaliate against violations of international law.11 Scholars argue that states have a moral obligation to comply with international law,12 which is crucial for safe nuclear energy production. Nuclear energy treaties provide precise obligations and fair procedures, emphasizing the importance of international cooperation. Compliance with international nuclear law is more than just a moral duty, as it legally binds states, scientific organizations, and all stakeholders in the nuclear energy industry to ensure 7

Statute of the International Court of Justice. https://www.icj-cij.org/statute. Accessed 26 Mar 2023. 8 Domestic legislation that does not fully incorporate international nuclear law may not adequately address important safety and security concerns related to nuclear energy. This could result in a lack of consistency and harmonization in the regulatory framework for nuclear power generation within the region, potentially leading to gaps in safety measures and the increased risk of accidents or incidents. Moreover, the limited implementation of international nuclear law in domestic legislation could hinder the ability of countries to cooperate effectively on nuclear safety and security issues. This could lead to a lack of transparency and trust between countries in the region, which are important factors for ensuring effective international cooperation in areas such as nuclear safety, security, and nonproliferation. 9 Case Concerning Pulp Mills on the River Uruguay (Argentine v. Uruguay), Judgment of 20 April 2010, ICJ Reports, 2010, p. 45. See also Lamm (2017). 10 Williams (2019). 11 Posner (2003). 12 Ibid.

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safe and secure utilization of nuclear materials. International nuclear law is part of general international regulations and principles, which takes a risk–benefit approach necessary for regulating dangerous activities. Hence, the objective of international nuclear law is to establish a legal framework for producing safe nuclear energy and safeguarding individuals, property, and the environment from ionizing radiation activities in an adequate manner.13 This objective is crucial to carefully evaluate existing nuclear activities and plans. To achieve this goal, the international community has created institutions such as the IAEA and the NEA. The IAEA reports to both the UN General Assembly and Security Council and ensures that nuclear power plants follow relevant international legal and regulatory criteria to guarantee the effective and efficient application of the technology. The IAEA has issued several recommendations to determine the adequacy of national legal systems regulating peaceful nuclear uses. The international law provisions for the safety and security of nuclear energy take the form of two types: (A) Fundamental principles adopted as universally applicable international law by conventions and treaties, which are binding on all member states; and (B) Technical requirements (including regulations, guidance, and recommendations), which are supervisory guidelines for the nuclear stakeholders. One key characteristic of international nuclear law is its equal emphasis on both advantages and threats. Advantages include medication, agriculture, energy, etc., while dangers comprise a human operation containing only risks, without advantages, requiring a formal prohibition regime.14 A robust international legal system can reinforce a tradition of nuclear safety around the world.

Safety, Security, Safeguard, and Liability: Key Themes Under International Nuclear Laws In this section, we will explore the key themes and their importance in achieving the goals of international nuclear laws and regulations. As mentioned earlier in this chapter, the objectives of international nuclear law refer not only to the operational power plants, but also to the planning, architecture, development, and commissioning of the new nuclear infrastructure and nuclear waste facilities, as well as the decommissioning of old infrastructure. Health and environmental protection, safety and responsibility management, their implementations and synergies are central to achieving the goals of international nuclear laws and regulations. Hence, safety, security, safeguards, and liability, being the key themes under international nuclear laws, play a crucial role in the planning, architecture, development, and commissioning of new nuclear infrastructure and nuclear waste facilities, as well as the decommissioning of old ones. 13 14

See Cook (2014). Stoiber et al. (2003), p. 3.

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Safety Numerous international laws, regulatory and technical guidelines, as well as scholarly publications, have emphasized that safety is a crucial requirement for nuclear energy production and the applications of ionizing radiation.15 In addition to laws and regulations, a proportion of subsidiary principles were articulated in debates on nuclear safety. One such principle is known as the “prevention principle.”16 It means that, considering the unique nature of the risks associated with the use of nuclear energy, the primary purpose of nuclear legislation is to encourage the exercise of vigilance and foresight to avoid harm that may occur from the use of the technology and to mitigate any adverse consequences arising from misuse or accidents. The prevention principle is a fundamental concept in nuclear energy safety that emphasizes the importance of preventing accidents and incidents from occurring in the first place, rather than relying solely on mitigating their consequences. The development of the prevention principle in relation to nuclear energy safety can be traced back to the early years of the nuclear industry. One of the key milestones in the development of the prevention principle was the Three Mile Island accident in 1979. This accident, which occurred at a nuclear power plant in Pennsylvania, the US, was caused by a combination of equipment malfunctions and human errors. The accident led to the release of radioactive materials into the environment and raised concerns about the safety of nuclear power. In response to the Three Mile Island accident, the nuclear industry and regulators began to focus more on preventing accidents and incidents from occurring. This led to the development of a range of measures to improve the safety of nuclear power plants, including better training for operators, renovate equipment design, and more rigorous safety assessments. Another key development in the prevention principle was the Chernobyl accident in 1986. This accident, which occurred at a nuclear power plant in Ukraine, was caused by a combination of design flaws, human errors, and a lack of safety culture. The accident led to a massive release of radioactive materials into the environment and had a significant impact on the nuclear industry. In the aftermath of the Chernobyl accident, the nuclear industry and regulators implemented a range of measures to improve the safety of nuclear power plants, including the adoption of more stringent safety regulations and the development of new technologies to prevent accidents and incidents from occurring.17 Another principle—“precautionary principle”—is a concept that emphasizes the need to take precautionary measures to prevent harm in situations where scientific uncertainty exists.18 In the context of nuclear energy, the precautionary principle can 15

See Langlois (2013). See Couturier et al. (2020). 17 Today, the prevention principle is a fundamental concept in nuclear energy safety and is enshrined in a range of international standards and regulations. These include the International Atomic Energy Agency’s (IAEA) Safety Standards and the Nuclear Safety Convention, which both emphasize the importance of preventing accidents and incidents from occurring in the first place. 18 See Yin and Zou (2021). 16

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be applied to ensure that adequate safety measures are in place to prevent accidents and incidents from occurring, even in situations where the likelihood or severity of an event is uncertain.19 While the precautionary and the prevention principle share some similarities, both are not identical concepts. The precautionary principle focuses on managing uncertain risks, while the prevention principle focuses on preventing risks from materializing in the first place. Both principles are important in the context of nuclear energy safety. They can be used together to ensure that adequate safety measures are in place to protect public health and the environment. Another principle is known as the “protection principle,” which complements the prevention principle.20 The primary objective of any regulatory regime is to balance the social costs and benefits.21 If it is determined that the hazards associated with an operation outweigh its benefits, it is essential to prioritize the protection of the environment and public health.22 In situations where it is not possible to achieve a balance, nuclear laws and regulations should require actions that favor protection. Additionally, the “ALARA principle,” which stands for “as low as reasonably achievable,” is also been associated with nuclear safety.23 It is a principle used in the nuclear industry to minimize radiation exposure to workers and the public.24 The principle is based on the idea that even small amounts of radiation can have harmful effects on human health, and therefore, radiation doses should be kept as low as reasonably possible.25 To apply the ALARA principle, operators of nuclear facilities must continually evaluate their operations in order to identify opportunities to reduce radiation exposure. They must also use appropriate protective measures, such as shielding, ventilation, and personal protective equipment, to minimize exposure to radiation. The ALARA principle requires operators to balance the risks and benefits of radiation exposure and act to reduce exposure to the lowest possible level.26 Among others, the “transparency principle”—which emphasizes the importance of transparency in decision-making related to nuclear safety—is regarded as another crucial concept relating to nuclear safety. It involves making information related to nuclear safety available to the public. This principle is critical because the public has the right to know about the risks associated with nuclear energy and the measures

19

Ibid. See Kermisch and Taebi (2017), IAEA (1995). 21 See Gonzalez (1992). 22 Ibid. 23 Frane and Bitterman (2020). 24 Ibid. 25 Ibid. 26 Ibid. 20

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being taken to mitigate those risks.27 To apply the transparency principle, regulatory bodies must make information available to the public about nuclear facilities, their operations, and their safety performance.28 This information should be presented in an accessible and understandable format, and regulators should be open and responsive to questions and concerns from the public. It is important to understand the “independence principle” as well, which emphasizes the significance of ensuring the independence of regulatory bodies responsible for overseeing nuclear safety.29 This principle is critical to prevent conflicts of interest that could compromise the safety of nuclear facilities.30 Regulatory bodies must have the authority to enforce regulations and standards, without interference from the nuclear industry or other stakeholders. To apply the independence principle, regulatory bodies should be established as independent organizations, with the authority to enforce regulations and standards. They should be funded independently and have the power to conduct inspections, issue penalties, and shut down facilities that do not meet safety standards.31 Last but not least, the “international cooperation principle” emphasizes the importance of international cooperation in ensuring nuclear safety.32 It recognizes that nuclear accidents can have transboundary effects. In this course, that cooperation among countries is necessary to ensure the safe and responsible use of nuclear energy. To apply the international cooperation principle, countries must share information and the best practices related to nuclear safety. They must also work together to develop and implement international standards and regulations related to nuclear energy. This includes sharing information about accidents and incidents, providing assistance to countries with less developed nuclear programs, and collaborating on research and development related to nuclear safety. When applying these principles, it is necessary to recognize the fundamental obligation to understand and consider all the risks and benefits of nuclear technology to achieve a sensible balance when defining legislative or regulatory measures. Hence, the fundamental concepts of safety enforced in international nuclear laws extend to a wide variety of activities and facilities, which present different types of risk factors. Activities that pose significant radiation hazards will require stringent technical safety measures and strict legal arrangements in parallel.33 Activities that present little to no danger of radiation would require only basic technological safety precautions, 27

See Wetherall A, Liang C. Transparency and Openness Through Nuclear Law: Enabling Climate Action. IAEA. https://www.iaea.org/bulletin/transparency-and-openness-through-nuclear-law-ena bling-climate-action. Accessed 31 Mar 2023. 28 Ibid. 29 See Ferguson and Reed (2010). 30 Ibid. 31 Ibid. 32 World nuclear Association. International Framework for Nuclear Energy Cooperation. https:// world-nuclear.org/information-library/current-and-future-generation/international-framework-fornuclear-energy-coopera.aspx#:~:text=The%20International%20Framework%20for%20Nuclear,% 2C%20security%20and%20non%E2%80%90proliferation. Accessed 31 Mar 2023. 33 Stoiber et al. (2003), p. 6.

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with minimal legal restrictions.34 Hence, international nuclear safety laws mirror the risk hierarchy.

Security The development of nuclear technology has its origins in military programs. Evidently, radioactive resources and technology pose health and safety threats if they are directed toward non-peaceful uses. The increasing threat of terrorism has led the international community to introduce security measures for radioactive materials and to take steps to prevent the dangers associated with atomic technology.35 The acquisition of radiation sources by extremist or criminal organizations can result in the development of nuclear weapons that may be used for immoral purposes. Misuse of certain forms of radioactive fuel can also lead to the dispersal of atomic explosives to both international and national entities. Therefore, special legal measures are necessary to ensure the safe use of radioactive materials that pose security risks. The international legal and regulatory framework serves as a protective barrier against both unintentional and deliberate misuse of nuclear products and technologies. International nuclear security laws require nuclear energy-producing nations to obtain authorization for certain activities through a licensing process defined under their national legal systems.36 The licensing process defines the permissible activities of nuclear technology and involves evaluating activities that pose a risk to individuals or the environment against technical and legal standards before licensing. International nuclear laws provide several guidelines to regulate fissionable material and radioisotopic activities.37 Authorization is required for activities or facilities identified as such by international nuclear security law. For activities deemed to pose minimal risk, a general authorization in the form of exemption can be issued,

34

Ibid. See Gaukler et al. (2002). 36 See Karim et al. (2018). 37 International nuclear law provides several guidelines to regulate fissionable material and radioisotopic activities, including: the Treaty on the Non-Proliferation of Nuclear Weapons (NPT): this treaty aims to prevent the spread of nuclear weapons and weapons technology, promote cooperation in the peaceful uses of nuclear energy, and achieve nuclear disarmament; the Convention on the Physical Protection of Nuclear Material (CPPNM): this convention provides for the physical protection of nuclear material during international transport and storage; the International Atomic Energy Agency (IAEA) Code of Conduct on the Safety and Security of Radioactive Sources: this code provides guidance for the safe and secure management of radioactive sources; the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management: this convention sets out the international standards for the safe management of spent fuel and radioactive waste; the Convention on Nuclear Safety: this convention aims to ensure the safe operation of nuclear power plants and to prevent accidents. 35

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subject to public disclosure.38 National regulators must also comply with international commitments for the peaceful use of nuclear energy while considering the impact of nuclear-related activity authorization on third parties. National regulators must monitor all authorized nuclear materials’ movement within their territories to ensure safe and secure use in compliance with international standards. International nuclear security laws also regulate specific risks of radiological contamination that may transcend national boundaries. Bilateral and multilateral instruments regionally and globally build the international nuclear security regime.

Safeguard Nuclear technology saw much of its early growth in military systems that originated after World War II.39 Around that time, and for a significant period thereafter, radioactive technology and material information were deemed extremely sensitive and regarded as classified by the governments. Nevertheless, with the technological advancement of the peaceful use of nuclear energy, public awareness and trust in the technology demanded that the policymakers and other relevant bodies provide access to the details as possible on the dangers and benefits of using nuclear energy.40 The international laws on nuclear safeguard require that stakeholders involved in the development of nuclear energy provide all relevant information to the international community on how nuclear energy is used, and how such utilization may have an impact on public health, safety, and the environment. A significant number of international treaties and conventions have been promulgated to codify the nuclear commitments of nations. With frequent movements of nuclear material and equipment across national borders, the international regulatory organizations, such as IAEA, must be permitted to monitor and control the approaches of national nuclear technology developments.41 The IAEA has three types of agreements on safeguards: (a) comprehensive safeguard agreements with non-nuclear weapon states that are parties to the NPT, (b) voluntary safeguard arrangements with NPT parties that possess nuclear weapons, and (c) specific safeguard agreements with non-NPT member states. These agreements can be complemented by an Additional Protocol, which includes provisions for granting the IAEA access to all parts of a state’s nuclear fuel cycle, from mining to nuclear waste. 38

Stoiber et al. (2010), pp. 47–48. Karim and Munir (2018). 40 Ibid. 41 The IAEA Safeguards play a significant role in preventing nuclear proliferation by independently verifying states’ compliance with nuclear non-proliferation commitments. The safeguards are based on several bilateral agreements, and the regulatory system includes various components. These components consist of the IAEA Statute, States’ obligations under the Non-Proliferation Treaty (NPT) and treaties that establish nuclear-weapon-free zones, and safeguards tools like safeguard agreements, protocols, and subsidiary arrangements to those agreements. Additionally, the decisions made by the IAEA Governing Board are also part of the regulatory system for IAEA Safeguards. 39

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Liability Nuclear energy involves various stakeholders, including research and innovation institutions, nuclear fuel processing units, nuclear technology developers, operators, construction firms, investors, financial institutions, and regulatory bodies. Given the involvement of multiple parties in nuclear-related activities, it begs a question: Who is primarily responsible for ensuring safety? Although every organization involved in nuclear-related activities bears some level of responsibility for ensuring nuclear safety and security, the operator or contractor responsible for operating the nuclear power plant is the primary entity entrusted with this critical task.42 Hence, legal frameworks have been established to assign or channel the financial liability for any damage that may result from nuclear-related activities to various parties. The fundamental principle underlying liability arrangements in the nuclear industry is that the operator or licensee must ensure that their activities meet safety, security, and environmental requirements. Nuclear energy poses a risk of significant harm to people, property, and the environment. Even though mitigation measures can reduce the risk, they cannot eliminate it entirely. As a result, international nuclear law requires states to provide adequate insurance coverage in the event of a nuclear disaster. The Convention on Third Party Liability in the Field of Nuclear Energy (The Paris Convention of 1960) established the nuclear liability regime for most of Western Europe.43 It was one of the earliest international legal measures addressing questions of nuclear liability, and The Paris Convention of 1960 was later supplemented by the

42

In case of a nuclear accident or damage, the operator is held solely responsible, primarily because they are in the best position to prevent accidents from occurring. Additionally, the cost of damages resulting from a nuclear accident can be incredibly high, and the operator is the party that has the resources and expertise to manage and respond to such incidents. Under the Civil Liability Convention of Nuclear Damage, nuclear operators are held strictly liable for any nuclear damage that occurs as a result of their activities. This means that they are held responsible for all damage caused, regardless of whether or not they were at fault for the incident. This strict liability standard ensures that nuclear operators take all necessary precautions to prevent accidents and damages from occurring in the first place. The Civil Liability Convention of Nuclear Damage also requires nuclear operators to maintain insurance or other financial security measures to cover their potential liability for nuclear damage. This helps to ensure that the costs of any damage resulting from a nuclear incident are adequately covered and that those affected by the incident are compensated for their losses. See IAEA. Vienna Convention on Civil Liability for Nuclear Damage. https://www.iaea.org/topics/ nuclear-liability-conventions/vienna-convention-on-civil-liability-for-nuclear-damage. Accessed 2 April 2023. 43 See NEA. Paris Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention or PC). https://www.oecd-nea.org/jcms/pl_20196/paris-convention-on-third-party-lia bility-in-the-field-of-nuclear-energy-paris-convention-or-pc#:~:text=The%20Paris%20Convent ion%20provides%20for,substances%20to%20and%20from%20installations. Accessed 2 April 2023.

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Brussels Supplementary Convention in 1963,44 which provided greater compensation. The IAEA subsequently sought to replicate the principles of the Paris Convention of 1960 at an international level, leading to the creation of the Vienna Convention on Civil Liability for Nuclear Damage in 1963. The broad principles of these conventions include strict liability for nuclear damage,45 exclusive liability for the operator of the nuclear installation,46 exclusive jurisdiction for courts in the state where the accident occurs,47 limited liability amounts and timeframes for claiming damages,48 and mandatory financial security for operators.49 Today, the guidelines set out in the 44

The Brussels Supplementary Convention of 1963 is an international treaty that supplements the Paris Convention of 1960. The Paris Convention established a nuclear liability regime for most of Western Europe, which required nuclear operators to have liability insurance and set limits on their liability in the event of a nuclear accident. The Brussels Supplementary Convention was created to provide for greater compensation to victims of nuclear accidents than the Paris Convention guaranteed. It increases the amount of compensation that a nuclear operator must pay to victims of a nuclear accident and expands the scope of the Paris Convention to cover damage caused by nuclear fuel in transit or storage. 45 Strict liability for nuclear damage is a legal principle that holds nuclear operators responsible for any damage that results from their activities, regardless of whether they were at fault or negligent. This means that in the event of a nuclear accident, the operator is automatically liable for any harm caused to people, property or the environment. Strict liability for nuclear damage shifts the burden of proof from the victim to the nuclear operator. In other words, the operator must prove that they were not at fault or negligent, rather than the victim having to prove that the operator was at fault. This helps ensure that victims of a nuclear accident receive prompt and adequate compensation for any harm they have suffered. 46 Exclusive liability for the operator of the nuclear installation is a legal principle that holds the operator of a nuclear facility solely responsible for any damage that results from their activities. This means that if a nuclear accident occurs, the operator is the only party that can be held liable for any harm caused to people, property, or the environment. By channeling all liability exclusively to the operator, the legal principle of exclusive liability helps ensure that victims of a nuclear accident receive prompt and adequate compensation for any harm they have suffered. This also helps encourage nuclear operators to take steps to minimize the risk of accidents and to maintain the highest standards of safety and security at their facilities. 47 Exclusive jurisdiction for courts in the state where the accident occurs is a legal principle that specifies that only the courts of the state where a nuclear accident occurs have the authority to hear and decide any claims for compensation arising from the accident. By limiting the jurisdiction to the courts of the state where the accident occurred, the legal principle of exclusive jurisdiction helps avoid the potential for conflicting or overlapping legal proceedings in different jurisdictions, which could lead to inconsistent results or delays in compensation for victims. However, in cases where the nuclear accident occurs in one state but causes damage in another state, the principles of international law require that the courts of the state where the damage occurred also have jurisdiction to hear and decide claims for compensation. 48 Limited liability amounts and timeframes for claiming damages refer to the principle in international nuclear liability law that sets a maximum limit on the amount of compensation an operator of a nuclear installation is liable to pay in the event of a nuclear incident, and a deadline for victims to make their claims for compensation. The amount of liability that an operator of a nuclear installation is required to have under the conventions is limited to a certain amount, beyond which the state may assume liability for the remaining damages. 49 The principle of mandatory financial security aims to ensure that operators have sufficient funds to compensate victims in the event of a nuclear accident. Operators can demonstrate their financial security by either obtaining insurance coverage or by setting aside financial reserves, such as a

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Paris and Vienna Conventions are the foundation of international nuclear liability law. Contracting states have the option of either adopting the conventions explicitly or translating their rules into domestic legislation.

International Nuclear Law Instruments The IAEA is an entirely distinguished international center for collaboration in the nuclear field, which is publicly recognized as “Atoms for Peace” organization. The Agency is also working as a wing with the UN. This organization operates with multiple partners including the member states present globally to support the secure, safe, and amicable use of nuclear technologies. The IAEA, in its authoritative Handbook on Nuclear Law,50 and its Implementing Legislation supplement,51 provides an appropriate summary of nuclear regulatory law. These manuals also emphasize that there is no single model for regulation. Put in other words, there is no conclusive, specific fixed model showing how nuclear energy law should be designed and enacted. The enactment of a comprehensive and effective nuclear energy law must be aligned with a state’s overall legal and regulatory framework reflecting the level and purpose of its nuclear program. To achieve this goal, nuclear energy laws should incorporate a range of interconnected issues, including safety, security, liability, and safeguards in a consistent and cohesive manner. To support this initiative, the IAEA has developed a range of international codes, safety principles, and security standards that can be used to establish a robust national legal framework for the safe generation of nuclear power. It is recommended that governments seeking to develop nuclear power plants adopt the IAEA’s global safety and security standards and incorporate them into their local laws and regulations. Additionally, countries intending to build nuclear power plants should consider granting the IAEA a greater supervisory role in nuclear safety, security, and proliferation issues. In the following section of this chapter, we will examine and analyze the major international laws that govern issues related to nuclear safety, security, safeguards, and liability.

Nuclear Safety and Security Regime The utilization of fission technology to generate electricity started in several developed countries since the mid-1950s. Globally, the majority of the nuclear power special fund, to cover their potential liability. The amount of mandatory financial security required under the conventions is limited and varies depending on the size and type of the nuclear installation, as well as the potential risks and damages that could arise from a nuclear accident. 50 Stoiber et al. (2003). 51 Stoiber et al. (2010).

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expansion transpired during the late 1960s and at the beginning of 1970s, with a variation in safety approaches and reactor types. Since then, cross-border collaboration has increased progressively on fission technology, and a substantial amount of operation principles, safety measures, and design criteria has been developed. After the disaster at the Chernobyl Nuclear Power Plant, the world recognized the urgency to continually unite and work in forming a single universal nuclear safety regime. Although current terrorist incidents have worked as an instigator for the evolution of the international nuclear security regime, such a regime is not that mature compared to the safety regime.52 Anxiety regarding malicious activities concerning the installation of the nuclear plant is not out of the blue. Recent terrorist incidents have shown that any intrusion on a nuclear plant might endeavor. This has expedited an extended locus of atomic material protection from the terrorists. Hence, security concerns in addition to safety in nuclear power plants became an important subject for development in the international legal regime. Over time, numerous international conventions have been established to enhance nuclear security and safety. These conventions have resulted in significant advancements in nuclear regulatory frameworks. International networks, national regulators, and nuclear power plant operators have also adopted these international obligations to improve nuclear safety and security. Below, we provide a brief overview of the international nuclear safety and security regime:

International Nuclear Safety and Security Regime Both nuclear security and nuclear safety have a mutual complementary objective: the protection of the environment, people, and society. In both instances, the aforementioned protection is obtained by restricting a substantial discharge of radioactive material. For nuclear security and safety, in the IAEA glossary,53 the following definitions are provided: • Safety: “The achievement of proper operating conditions, prevention of accidents and mitigation of accident consequences, resulting in protection of workers, the public and the environment from undue radiation risks.”54 • Security: “The prevention and detection of, and response to, criminal or intentional unauthorized acts involving nuclear material, other radioactive material, associated facilities or associated activities.”55

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Mishra (2017). IAEA (2018). 54 Ibid., p 155. 55 Ibid. 53

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Fig. 3.1 Global nuclear safety regime

The safety and security of nuclear energy mainly revolve around the different aspects of generating electricity from atomic materials.56 This includes all the activities associated with operating a nuclear power plant, from its placement and design to manufacturing, commissioning, operation, and decommissioning.57 In addition to these specific elements of electricity generation, general laws and regulations can also be employed to address any issues that may arise throughout the process. Given the diverse nature of nuclear energy regulation, which encompasses interconnected elements, such as electricity generation, transmission, distribution, and supply, this book seeks to examine the critical safety issues associated with these various components. Furthermore, to ensure the safety of nuclear facilities worldwide, it is crucial that international participants in the Nuclear Safety Regime work collaboratively. A schematic representation of the stakeholders involved in the Global Nuclear Safety Regime can be found in Fig. 3.1. A robust national nuclear infrastructure requires various participants, including nuclear safety regulators, research organizations and universities, operators of nuclear facilities, suppliers of equipment and services, scientific and technical support organizations, and other stakeholders with interests in safeguarding nuclear safety. In addition to national nuclear participants, the global nuclear safety regime requires international participants to monitor nuclear establishments worldwide. Essential international participants include multinational networks and regulators such as the Network of Regulators of Countries with Small Nuclear Programs (NERS), 56

World Nuclear Association. Safety of Nuclear Power Reactors. https://world-nuclear.org/inform ation-library/safety-and-security/safety-of-plants/safety-of-nuclear-power-reactors.aspx. Accessed 3 April 2023. 57 Ibid.

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the Western European Nuclear Regulators Association (WENRA), the International Nuclear Regulators Association (INRA), and the Forum of the State Nuclear Safety Authorities of the Countries Using WWER Type Reactors. Other important international participants include multinational networks of operators, namely “Owners Groups” of various nuclear power plant vendors, the World Association of Nuclear Operators (WANO), and the International Network for Safety Assurance of Fuel Manufacturers (INSAF). Intergovernmental institutions assigned to nuclear energy development, such as the OECD/NEA and the IAEA, international nuclear industry stakeholders, e.g., the World Nuclear Association, nuclear power plant vendors, suppliers of equipment and services, non-governmental organizations (NGOs), the public and news media, international standards-setting organizations, and multinational networks of scientists are also essential participants. Together, these global participants constitute the International Nuclear Safety Regime, which must be active and efficient to ensure a reasonable level of safety regarding nuclear energy generation. The international efforts that promote nuclear safety should supplement the domestic activities of nuclear-producing countries within their jurisdiction. International nuclear organizations, such as multinational networks among regulators, the international nuclear industry, multinational networks among operators, multinational networks among scientists, stakeholders such as the public, international standards-setting organizations, news media, and NGOs, must take a significant role in ensuring nuclear safety worldwide. The collective efforts of nuclear-experienced bodies and stakeholders can address the challenges associated with nuclear safety.

International Nuclear Security Regime The International Nuclear Security Regime includes international legal apparatuses, comprising the IAEA Nuclear Security Series publications, conventions and codes of conduct enhanced by the IAEA security services. Key international agreements, such as the Convention on the Physical Protection of Nuclear Material and its 2005 amendment,58 along with the IAEA’s Code of Conduct on the Safety and Security of Radioactive Sources,59 serve as the cornerstone of the nuclear security regime. These agreements and guidelines establish minimum standards for nuclear security and encourage countries to adopt the best practices. In addition to these legal frameworks, the international community has also established several programs and initiatives to promote nuclear security, such as the Global

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IAEA. Convention on the Physical Protection of Nuclear Material (CPPNM) and its Amendment. https://www.iaea.org/publications/documents/conventions/convention-physical-protectionnuclear-material-and-its-amendment. Accessed 3 April 2023. 59 IAEA. Code of Conduct on the Safety and Security of Radioactive Sources. https://www-pub. iaea.org/MTCD/Publications/PDF/Code-2004_web.pdf. Accessed 3 April 2023.

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Initiative to Combat Nuclear Terrorism60 and the Nuclear Security Summit 61 process. These initiatives aim to strengthen the international community’s ability to prevent, detect, and respond to nuclear security threats. Just like nuclear safety, an effective nuclear security requires the involvement of multiple stakeholders, including national regulators, facility operators, law enforcement agencies, and international organizations, e.g., the IAEA. Through cooperation and collaboration, these stakeholders can work together to mitigate the risks associated with nuclear materials and facilities and ensure the continued safe and secure use of nuclear technology for peaceful purposes.

International Nuclear Safety and Security Regulations To develop nuclear energy and to further improve the global nuclear safety measures, three international organizations in the field of atomic power were established that till this day command with significant influence. The Euratom, the OECD-NEA, and the IAEA were all founded within a month’s gap to each other, in between 1957 and 1958. Of the three organizations, the IAEA represents the largest number of member states. Hence, it is considered as the central organization in the area of nuclear safety and security. Its authority is incorporated into the Statute of IAEA, which represents the Agency’s aims and jurisdiction. The goals of the Agency are to “accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world [and to] ensure … that assistance provided by it … is not used in such a way as to further any military purpose.”62 The Agency has the exclusive legal authority to recommend and require compliance with nuclear safety and security standards, as well as to impose standard measures on member states that produce energy through nuclear means. Several agreements are enacted to strengthen the promise of nuclear safety. These conventions create legal obligations to the member states. Since 1986, the following conventions were introduced with the intent to enhance nuclear security and safety globally, in the fields of nuclear energy production, nuclear waste management, and radiation safety (See Fig. 3.2): • The Convention on Early Notification of a Nuclear Accident [date of entry into force: 27 October 1986]; • The Convention on Assistance in the Case of Nuclear Accident of Radiological Emergency [date of entry into force: 26 February 1987]; 60

NTI. Global Initiative to Combat Nuclear Terrorism. https://www.nti.org/education-center/ treaties-and-regimes/global-initiative-combat-nuclear-terrorism-gicnt/#:~:text=The%20GICNT% 20is%20an%20international,of%20nuclear%20and%20radiological%20materials. Accessed 3 April 2023. 61 See Gill (2020). 62 The Statute of the IAEA. https://www.iaea.org/about/statute. Accessed 6 April 2023.

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Fig. 3.2 Intersection of nuclear safety and nuclear security regime

• The Convention on Nuclear Safety (CNS) [date of entry into force: 24 October 1996]; and • The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management [date of entry into force: 18 June 2001]. The convention on Early Notification of a Nuclear Accident, originally incorporated in 1986 after the Chernobyl atomic plant mishap, builds up a regulatory framework to notify for any atomic mishaps from which the radioactivity may result in a transboundary discharge of radiation and can cause noteworthy radiological damage to another State.63 The convention expects states to notify the accident’s time, area, nature, and additional information fundamental for surveying the circumstance. A warning should also be circulated immediately to the concerned states as well as to the IAEA. Such a warning to the relevant offices and other important required exercises is mandatory for any atomic mishap as prescribed in Article 1 of the Convention. Under Article 3, states should also inform regarding any atomic accidents which may cause from any sources other than the disaster in a nuclear power plant. Furthermore, Article 11 expounds that in case of a dispute within states or among the Agency and a state, the parties will settle the matter through mediation or with any methods adequate to them and acceptable according to the application of this Convention. 63

See Convention on Early Notification of a Nuclear Accident. https://www.iaea.org/topics/nuc lear-safety-conventions/convention-early-notification-nuclear-accident. Accessed 6 April 2023; McBrayer (1987).

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Subsequently, the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency was adopted to establish a framework for international cooperation and assistance in the event of a nuclear accident or radiological emergency.64 The Convention outlines the procedures for requesting and providing assistance, as well as the responsibilities of the affected state and the assisting state(s). The Convention aims to facilitate the prompt and effective response to such emergencies, minimize their consequences, and protect human health and the environment. The Convention additionally establishes a global regulatory obligation for the States to cooperate among themselves and along the IAEA in any event of nuclear disaster. The Convention stipulates that member states should notify the IAEA of their available experts, equipment, and resources to support any state affected by a radiological emergency. To address concerns related to cross-border radiological damage, the Convention offers a concise framework in Articles 2, 3, 6, and 8. In addition, Article 10 outlines the rules for state participation and cooperation in the settlement of any legal disputes or proceedings in the event of a radiological accident. In 1994, the Convention on Nuclear Safety was adopted as a separate international legal instrument to complement and reinforce the provisions of the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency and the Convention on Early Notification of a Nuclear Accident.65 While the Convention on Assistance focuses on international cooperation and assistance in the event of a nuclear or radiological emergency, and the Convention on Early Notification requires member states to promptly report any such incidents to the IAEA, the Convention on Nuclear Safety aims to ensure the safe operation of nuclear power plants through the implementation of robust safety measures and the exchange of information and best practices among member states. The Convention on Nuclear Safety serves as a platform for member states to share their experiences and challenges in ensuring the safe operation of nuclear power plants, with the ultimate goal of promoting global nuclear safety and preventing nuclear accidents. As a consequence of impressive work by Governments, national atomic well-being experts, and the IAEA from 1992 to 1994, the Convention was comprehensively drafted with the intention of putting together all the necessary safety regulations in a single legal instrument.66 The Convention stipulates provisions to ensure fundamental safety standards for every nuclear power plant in a regular process by yearly inspections.67 State parties are required to present reports on the execution of their safety standards for “peer review” at the IAEA’s conferences.68 Such an evaluation of safety standards mechanism is the unique and influential part of this international legal instrument of nuclear safety. 64

Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. https:// www.iaea.org/topics/nuclear-safety-conventions/convention-assistance-case-nuclear-accident-orradiological-emergency. Accessed 6 April 2023. 65 Convention on Nuclear Safety. https://www.iaea.org/topics/nuclear-safety-conventions/conven tion-nuclear-safety. Accessed 6 April 2023. 66 Szasz (1994). 67 Ibid. 68 See Caruso (2018).

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All the conventions mentioned above are directly related to matters of nuclear safety and each one offers general and concise guidance. However, the Joint Convention specifically addresses the concerns of nuclear-spent fuel and radioactive waste management, making it the primary convention in this area. This legal instrument establishes major safety standards and provides a comparable evaluation procedure, much like the Convention on Nuclear Safety.69 The Convention applies only to issues related to spent fuel from civil nuclear power plants. However, it also addresses concerns about spent fuel and radioactive waste originating from military programs, and whether such substances are used in a civil nuclear program or affect civilians in a particular area.70 Additionally, the Convention covers regulated discharges of liquid or gaseous radioactive substances into the environment from any nuclear facility. In addition, the IAEA General Conference endorses several Codes of Conduct, which some member countries are politically committed to following and observing. These Codes are: • Code of Conduct on the Safety and Security of Radioactive Sources –200471 ; • Code of Conduct on the Safety of Research Reactors –2004.72 The IAEA Code of Conduct on the Safety and Security of Radioactive Sources provides guidance to states on how to safely and securely manage hazardous radioactive materials. The Code aims to assist national authorities in ensuring that radioactive sources are used and controlled with proper safety and security measures. This nonbinding legal instrument has been endorsed by the IAEA member states. Paragraphs 23–29 of the Code specifically address the issues related to the import and export of radioactive sources. In addition to the Code, the IAEA has also developed the “Guidance for the Import and Export of Radioactive Sources” to provide specific guidance on implementing paragraphs 23–29 of the Code.73 The Guidance serves as a supplement to the Code. On the other hand, the Code of Conduct on the Safety of Research Reactors strengthens global nuclear security measures for research reactors. This Code sets out fundamental principles for the management of research reactor safety and provides guidance to governments, regulatory bodies, and other relevant organizations for the development and coordination of appropriate strategies, laws, and regulations. This

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See Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. https://www.iaea.org/topics/nuclear-safety-conventions/joint-conventionsafety-spent-fuel-management-and-safety-radioactive-waste. Accessed 9 April 2023. 70 Article 3, Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. 71 See Code of Conduct on the Safety and Security of Radioactive Sources. https://www.iaea.org/ publications/6956/code-of-conduct-on-the-safety-and-security-of-radioactive-sources. Accessed 9 April 2023. 72 See Code of Conduct on the Safety of Research Reactors. https://www.iaea.org/publications/ 7380/code-of-conduct-on-the-safety-of-research-reactors. Accessed 9 April 2023. 73 See Guidance for the Import and Export of Radioactive Sources. https://www-pub.iaea.org/mtcd/ publications/pdf/8901_web.pdf. Accessed 9 April 2023.

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Code aims to achieve and maintain a state of safety for research reactors worldwide, which can only be achieved through appropriate safety measures. Thus, the Code provides a standard framework for conducting research on nuclear reactors and elaborates on the conditions necessary to avoid accidents. The Conventions mentioned above deal with specific issues of nuclear safety. Other international instruments, which are connected solely to nuclear security, are: • The Convention on the Physical Protection of Nuclear Material (CPPNM) –1987, and its amendment 200574 ; • The International Convention for the Suppression of Acts of Nuclear Terrorism75 ; and • The United Nations Security Council Resolution 1540 (dealing with the weapon of mass destruction).76 The Convention on the Physical Protection of Nuclear Material is the primary international legal instrument that regulates the use of nuclear materials and prohibits their utilization without the approval of the IAEA. This Convention includes provisions for the prevention and punishment of criminal offenses related to nuclear materials, establishing models for the prevention, apprehension, and trial of such crimes. The member states of the Convention recognized the need to strengthen and update its provisions related to the protection of nuclear materials. Hence, in July 2005, a Diplomatic Conference was convened to revise the Convention and introduce new regulations that legally bind State Parties to ensure that atomic substances are used exclusively for peaceful purposes. The amended Convention also provides for enhanced cooperation among States to promptly recover stolen or smuggled nuclear material, minimize the risk of radiological incidents, and prevent and mitigate any offenses related to nuclear facilities. In addition to the IAEA and the Convention on the Physical Protection of Nuclear Material discussed above, the UN has also created the International Convention for the Suppression of Acts of Nuclear Terrorism in 2005, which criminalizes acts of nuclear terrorism. This Convention aims to enhance judicial, administrative and regulatory cooperation to prevent, investigate, and punish criminal acts involving nuclear material. With 115 signatories and 120 state parties, including major nuclear powers such as the US, the UK, China, India, France, and Russia, the Convention is considered the most recent and effective legal instrument for regulating criminal actions related to nuclear material.77 74

See Convention on the Physical Protection of Nuclear Material (CPPNM) and its Amendment. https://www.iaea.org/sites/default/files/publications/documents/infcircs/1979/infcir c274r1m1c.pdf. Accessed 9 April 2023. 75 See International Convention for the Suppression of Acts of Nuclear Terrorism. https://treaties. un.org/doc/source/RecentTexts/English_18_15.pdf. Accessed 9 April 2023. 76 United Nations Security Council Resolution 1540. https://www.un.org/disarmament/wmd/sc1 540/. Accessed 9 April 2023. 77 To get more information, see United Nations Treaty Collection. https://treaties.un.org/pages/Vie wDetailsIII.aspx?src=TREATY&mtdsg_no=XVIII-15&chapter=18&Temp=mtdsg3&clang=_en. Accessed 9 April 2023.

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In case of the above-discussed Conventions, as some of them intersect between nuclear safety and security, they provide legal obligations to the member states in both nuclear safety and security regime. The graphical representation in Fig. 3.2 can give a better understanding on how the Conventions and Codes of nuclear safety and security intersect and form important international legal obligation to ensure safe utilization of nuclear energy. In addition to the Conventions discussed earlier, the UN Security Council passed Resolution 1540 on the non-proliferation of weapons of mass destruction.78 Resolution 1540 requires all member states to establish and implement appropriate legal and administrative measures to prevent both the spread of radiological and nuclear weapons and their delivery systems, and access to such weapons by non-state actors.79 Resolution 1540 strengthens global commitments to prevent the proliferation of weapons of mass destruction and mitigate the risk of their use by non-state actors. It aims to promote greater international cooperation in this regard and to enhance the effectiveness of existing legal instruments and regime.80 The IAEA in September 2011, with the consistent endorsement of its General Conference of 153 member states at the time, “in light of the Fukushima mischance,” embraced an Action Plan encompassing 12 principle activities, each with relating subactivities, for the sole reason to reinforce the worldwide nuclear security system.81 The Action Plan emphasizes the fundamental principle of responsibility in nuclear energy, which requires nuclear power plant operators to maintain the highest standards of atomic safety and security and to respond promptly, transparently and appropriately to nuclear emergencies.82 Operators must also address all necessary safety and security issues to prevent accidents.83 The 12 main action points for nuclear safety urge member states to assess the security vulnerabilities of nuclear power plants based on lessons learned from past accidents, strengthen the IAEA peer reviews, improve crisis readiness and response, enhance the effectiveness of national regulatory bodies, improve working relationships between relevant organizations, develop the global legal framework, review and reinforce the IAEA safety measures, promote technological advancements, strengthen existing capacities, ensure ongoing evaluation, increase transparency and communication, and promote research and development.84 These safety and security standards are designed to protect people and the environment from the harmful effects of ionizing radiation and apply throughout the lifetime of all nuclear activities and facilities to reduce radiation hazards. These principles 78

UN Security Council Resolution 1540 (2004). https://www.un.org/disarmament/wmd/sc1540/. Accessed 10 April 2023. 79 Ibid. 80 Ibid. 81 IAEA Action Plan on Nuclear Safety. https://www.iaea.org/sites/default/files/actionplanns.pdf. Accessed 10 April 2023. 82 Ibid. 83 Ibid. 84 Ibid.

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also encompass the activities related to nuclear facilities and the use of radiation and radioactive sources, transport of radioactive fuel, and management of radioactive waste.85 In addition to complying with international standards on nuclear safety and security regulation, countries must ensure consistency between their national nuclear power regulations and other domestic laws related to the environment and related fields.

International Environmental Law Principles and Cases Relevant to Nuclear Safety and Security According to Article 38 of the Statute of the International Court of Justice, the ICJ is required to apply, among other things, international conventions (that are expressly recognized by the contesting states), international custom (as evidence of a general practice accepted as law), general principles of law, judicial decisions, and juristic writings as means for the determination of rules of law. Article 38 of the ICJ Statute is fundamental to international environmental regulation as it provides the framework for the sources of international law.86 Nuclear energy plays a crucial role in this regulation as a branch of public international law, which has shifted from its initial focus of purely anthropocentric to ecocentric approach.87 Therefore, it has led to the development of several substantive and procedural principles to safeguard the environment and human health, which are eventually relevant to nuclear safety.88 Substantive environmental law principles include the “no harm rule,” “good neighborliness and international cooperation,” “state sovereignty, responsibility and liability,” “common but differentiated responsibility,” “polluter pays” and “sustainable development.” Meanwhile, procedural ones include “duty to notify, consult and negotiate,” “effective public participation in decision-making,” “prior informed consent” and “precautionary principle.”89 85

Ibid. Brunnée (2018). 87 Faruque (2020). 88 These international environmental norms or principles derived from customary international law: this refers to the rules and practices that have been established by the consistent conduct of states over time; treaties and conventions: agreements between states that establish rules and standards for environmental protection; general principles of law: the legal systems of different countries are recognized by most legal systems; judicial decisions: These decisions are made by international courts and tribunals and may contribute to the development of international environmental law; soft law instruments: these are non-binding instruments such as declarations, guidelines, and principles that may serve as a basis for the development of international environmental law; scientific knowledge and expertise. 89 The substantive and procedural principles and implementation processes of environmental law relating to nuclear energy are inter-related because they work together to ensure the protection of the environment and human health from the harmful effects of nuclear energy. For example, the principle of “prior informed consent” requires that communities and individuals are consulted and provided with information before any nuclear project is approved or implemented. This principle works 86

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The environmental law principle of “no harm rule” states that nations have an obligation not to cause environmental harm to other nations or areas beyond their jurisdiction.90 This principle is particularly relevant in the context of nuclear energy law, as the production, use, and disposal of nuclear materials can have significant environmental consequences beyond national borders.91 Countries producing nuclear energy are required to ensure that their activities do not cause harm to the environment or to the health of individuals in other countries. This obligation is reflected in various international treaties and conventions, such as the Convention on Environmental Impact Assessment in a Transboundary Context92 and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.93 Additionally, the principle of “good neighborliness and international cooperation” is a fundamental ground of international environmental law.94 It emphasizes that states have the duty to cooperate with each other and act in a way that does not harm the environment or the interests of other states.95 In the context of nuclear energy law, this principle is particularly relevant due to the transboundary nature of nuclear activities.96 The risk of nuclear accidents, radioactive contamination, and other environmental impacts of nuclear energy production can have far-reaching effects beyond national borders. Therefore, nuclear energy-producing states must act in a manner that promotes cooperation with other states and ensures that their nuclear activities do not cause harm to the environment or the interests of neighboring countries. The principle of good neighborliness and international cooperation can also guide the development of international agreements and treaties related to nuclear energy. These agreements can promote cooperation between states and establish common standards for nuclear safety and environmental protection. Working together, states can address the unique challenges associated with nuclear energy and minimize the potential harm brought to the environment and human health. together with the principle of “effective public participation” which requires that communities and individuals have access to information and the ability to participate in decision-making processes. Similarly, the principle of “polluter pays” requires that those responsible for the harmful effects of nuclear energy bear the costs of remediation and cleanup. This principle works together with the principle of “state sovereignty, responsibility and liability” which holds states responsible for the environmental impacts of nuclear energy and the need to establish effective liability regimes. Overall, the principles and implementation processes of environmental law relating to nuclear energy are inter-related and work together to ensure the protection of the environment and human health from the harmful effects of nuclear energy. 90 See also Brownlie (2008), Birnie et al. (2009). 91 See Gupta and Schmeier (2020). 92 Convention on Environmental Impact Assessment in a Transboundary Context. https://unece.org/ fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention_authentic_ENG.pdf. Accessed 10 April 2023. 93 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (as amended in 2006). https://wwwcdn.imo.org/localresources/en/OurWork/ Environment/Documents/PROTOCOLAmended2006.pdf. Accessed 10 April 2023. 94 Sobenes and Devaney (2022). 95 Ibid. 96 Gadkowski (2021).

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The “good neighborliness and international cooperation” is also complemented by another environmental law principle of “state sovereignty, responsibility, and liability,” which is relevant to nuclear energy law. In this regard, each state assumes responsibility to use the nuclear energy within its territory safely without causing harm to the environment or to neighboring states.97 States that operate nuclear facilities have a duty to ensure that their nuclear activities comply with applicable international laws and regulations, including those related to safety and environmental protection. In case of any accidents or incidents that may occur at nuclear facilities, states are responsible for taking appropriate measures to mitigate the consequences and to prevent harm to the environment and public health. Liability regimes have also been established to ensure that those responsible for any harm caused by nuclear accidents or incidents are held accountable, and that the victims are provided with compensation for damages.98 Consequently, the principle of “common but differentiated responsibility” in environmental law recognizes that all states have a responsibility to protect the environment, but developed countries should take greater responsibility due to their historical contributions to environmental degradation and their greater capacity to address environmental problems.99 In the context of nuclear energy, this principle can be applied to the responsibility of developed countries with advanced nuclear technology to provide technical and financial assistance to developing countries in order to help them establish and maintain safe and sustainable nuclear energy programs. At the same time, developing countries also have a responsibility to take appropriate measures to protect the environment and to ensure the safe use of nuclear energy within their borders. This may include adopting and enforcing strict regulations and standards for nuclear safety and waste management, and seeking technical and financial assistance from developed countries to help them meet these obligations. The environmental law principle of “polluter pays” also connects to nuclear energy law in the sense that it holds the operators of nuclear facilities responsible for any harm caused to the environment or human health as a result of their activities.100 The “polluter pays” principle specifies that those who cause pollution or damage to the environment should bear the costs of cleaning up or remedying the harm caused. In the case of nuclear energy, the principle means that nuclear operators must bear the financial burden of any accidents, spills, or other incidents (including the management of nuclear waste) that result in environmental damage or harm to public health. Overall, the substantive environmental law principles intersecting to nuclear law aim for the sustainable development of nuclear energy, which seeks to balance economic, social, and environmental considerations for the present and future generations. In the context of nuclear energy law, sustainable development implies that the use of nuclear energy should be sustainable; that is, it meets the needs of the present 97

See Anastassov (2014). Ibid. 99 See Stone (2004). 100 See Lindskog et al. (2011). 98

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generation without compromising the ability of future generations to meet their own needs. On the other hand, the procedural principles of environmental law are also important for the implementation of the substantive principles of environmental law. For example, the substantive principle of “polluter pays” may require that a polluting entity bears the cost of the environmental damage caused. However, without an effective procedure for identifying the polluting entity and quantifying the damage, the substantive principle may not be effectively enforced. Procedural principles, such as public participation, notification, and consultation, can ensure that all stakeholders are involved in decision-making processes, leading to more effective implementation of substantive principles.101 As such, the procedural environmental law principle of “duty to notify, consult, and negotiate” is important in the context of nuclear energy law because it ensures that stakeholders are given a say in decisions that may affect the environment.102 In the case of nuclear energy, this principle is particularly relevant because of the potential risks associated with nuclear energy production, storage, and disposal. The duty to notify requires that governments and other entities responsible for nuclear energy activities provide information to the public and other stakeholders about their plans, projects, and potential impacts on the environment. The duty to consult requires that these entities engage in meaningful consultation with affected communities, indigenous peoples, and other stakeholders. The duty to negotiate requires that these entities work together with stakeholders to find mutually acceptable solutions to any concerns or issues that may arise. If a nuclear power plant is proposed in a particular area, for example, the duty to notify would require the government or company responsible for the project to inform the local community about the project and any potential impacts it may have on the environment. The duty to consult would require them to engage in meaningful consultation with the community to hear their concerns and address them where possible. The duty to negotiate would require them to work with the community to find mutually acceptable solutions, such as measures to mitigate any potential harm or compensation for any adverse effects. Another procedural environmental law principle of “effective public participation in decision-making” requires that the public should be given the opportunity to participate in decision-making processes that may impact the environment. This principle is particularly relevant to nuclear energy law as the development, operation, and decommissioning of nuclear facilities can have significant environmental impacts.103 Effective public participation ensures that the concerns and interests of the public are considered when making decisions about nuclear energy, and that the decision-making process is transparent and accountable.104 This principle requires that relevant information about the nuclear project be made available to the public, 101

To know more on how substantive environmental principles/rights complement the procedural environmental principles/rights, see Daly (2012). 102 See Nanda (2006). 103 Duvic-Paoli and Lueger (2022). 104 Ibid.

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and that public consultations are held at various stages of the project, including the planning, licensing, and operation stages. According to the IAEA’s Convention on Nuclear Safety, for example, States should take measures to ensure that the public has access to information about nuclear safety and participate in the decision-making process related to the safety of nuclear facilities.105 Additionally, the Aarhus Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters require that the public be given access to information about activities that may have an impact on the environment, including nuclear activities, and that they are allowed to participate in decision-making processes related to such activities. The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, adopted in 1998, is a crucial international agreement that provides guidance on environmental protection with respect to nuclear power stations and other reactors.106 The Aarhus Convention imposes a responsibility on all countries that produce nuclear energy to inform citizens about any application related to nuclear energy.107 It also includes provisions on organizing public awareness and collaboration during the development of nuclear laws and policies.108 The principles set out in the Convention are therefore essential in ensuring transparency and accountability in nuclear energy-related decision-making processes. Similarly, another procedural environmental law principle of “prior informed consent” complements the previously discussed “effective public participation in decision-making,” as it requires that individuals and communities potentially affected by a proposed activity be provided with relevant information and given the opportunity to participate in decision-making before the activity is approved or implemented. The principle of prior informed consent in environmental law requires that affected communities and individuals be informed about potential environmental impacts and have the right to participate in the decision-making process regarding projects that may affect their environment.109 In the context of nuclear energy law, the principle of prior informed consent is also particularly important in relation to the disposal of nuclear waste. This is because the storage and disposal of nuclear waste can have significant long-term impacts on the environment and local communities.110 The principle of prior informed consent requires that the potentially affected communities and individuals be given adequate information about the proposed disposal sites, because they have the right to participate in the decision-making process. This 105

See Articles 14, 16, and 17 of the Convention on Nuclear Safety. https://www.iaea.org/sites/def ault/files/infcirc449.pdf. Accessed 10 April 2023. 106 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. https://unece.org/DAM/env/pp/documents/cep43e.pdf. Accessed 10 April 2023. 107 Ibid. 108 Ibid. 109 Peiry (2011). 110 To understand how storage and disposal of nuclear waste can have significant long-term impacts on the environment and local communities, see Kelleher (2017).

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includes the right to be consulted on the proposed disposal site and the right to provide their consent or withhold it. Other than the Conventions and established principles, several adjudications relating to environmental protection from radiological substances also provide the basic grounds of nuclear safety laws. In its 1995 review of the 1973 Nuclear Tests Case (New Zealand vs. France),111 the ICJ reemphasized the responsibilities of nations to consider and preserve the fundamental essences of our environment.112 These responsibilities had earlier been echoed in the Pacific Fur Seal Arbitration (1893)113 and the Trail Smelter Arbitration (1941),114 but they were first developed as a legal and institutional regime by the 1972 Stockholm Conference. The Stockholm Conference, officially known as the UN Conference on the Human Environment, was a landmark event that established a comprehensive framework for global environmental law and policy. One of the key outcomes of this conference was the creation of the United Nations Environment Programme (UNEP). In 1992, world leaders once again convened to develop a universal legal instrument for protecting 111

1995 I.C.J. 288. On May 9, 1973, Australia and New Zealand initiated legal proceedings against France regarding its proposed nuclear weapons tests in the South Pacific region. France refused to appear at the public hearings or submit any pleadings, stating that it believed the International Court of Justice lacked jurisdiction. On June 22, 1973, the Court issued provisional measures at the request of Australia and New Zealand, which included a directive that France should avoid any nuclear tests that could cause radioactive fallout on Australian or New Zealand territory until a judgment was reached. On December 20, 1974, the Court issued two judgments in which it determined that the applications of Australia and New Zealand were no longer applicable because the objective of both countries had already been achieved. The Court found that France had announced its intention to cease carrying out any further atmospheric nuclear tests on the completion of its 1974 series, which rendered the applications of Australia and New Zealand moot. 112 Even though the ICJ did not decide on the substance of New Zealand’s claims in the Nuclear Tests Case, the Court made it clear that its decision does not undermine the “obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffirmed their commitment.” See Tokarz (1998). 113 In the 1880s, a fishery dispute between the United Kingdom of Great Britain and Ireland and the United States resulted in an arbitration. Throughout the conflict, the United States Revenue Cutter Service, presently known as the United States Coast Guard, seized several Canadian sealer vessels. After the initial three ships were captured, the British imperial government, still responsible for foreign affairs for the Dominion of Canada, issued an order for release, but no action was taken to stop the seizures, and the ships were not released. Consequently, the U.S. claimed exclusive jurisdiction over the Bering Sea sealing industry, leading to negotiations outside of the courts. Ultimately, the award favored the British, and the Americans were denied exclusive jurisdiction. The British received compensation for the damage inflicted on their vessels, and the American sealing zone remained at its pre-conflict size of 60 miles. 114 The Trail Smelter dispute is a landmark transboundary pollution case that involved the Canadian and US federal governments, ultimately leading to the establishment of the Harm principle in environmental law. The smelter in Trail, British Columbia, operated by the Consolidated Mining and Smelting Company (COMINCO) until its merger with Teck in 2001, had been processing lead and zinc since 1896, with smoke from the smelter causing extensive damage to the surrounding forests and crops, including across the Canada-US border in Washington. This led to complaints and demands for compensation from distressed residents, with no resolution reached between the smelter operators and the affected landowners. As a result, the case was referred to an arbitration tribunal and, after negotiations and litigation, was finally settled in 1941.

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the environment and promoting sustainable development at the Rio Earth Summit. This summit also saw the adoption of several important documents, including the Brundtland Report of 1987, the Rio Declaration on Environment and Development, and Agenda 21. The ICJ in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons said that “the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.”115 Such an obligation, thus, became a major part of the corpus of international law relating to the environment. On another instance, Judge Weeramantry in the Gabcikovo-Nagymaros Danube Dam Case, emphasized the link between sustainable developments, environmental impact assessment, and continued environmental monitoring in case of nuclear energy production.116 Additionally, the issue of whether the “do-no-harm” principle requires a duty to prevent all significant harm across borders has been examined in the Advisory Opinion on the Legality of Nuclear Weapons and the Gabcikovo-Nagymaros case.117 As per these cases, states are obliged to prevent harm arising from an active disposition on or over their territory, and not from a failure to take protective measures.118 The “no harm” principle is breached only when the state of origin has not acted diligently in relation to its own activities, whether state-owned enterprises or private activities.119 Hence, the duty to prevent harm is also understood as an obligation of due diligence under international environmental and nuclear law. As such, in the event of a radiological emergency, a country can seek international legal aid to another country if it is verified that the country responsible for the nuclear radiation failed to take necessary precautions, leading to undue harm. This underscores the obligation of countries to conduct prior environmental impact assessments, notify, and engage in discussions with other countries that may be impacted by nuclear projects. However, this does not imply that countries must refrain from potentially hazardous nuclear activities.

115

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 241–242, para. 29. See also World Court Digest. https://www.mpil.de/de/pub/publikationen/ archiv/world-court-digest.cfm?fuseaction_wcd=aktdat&aktdat=214000000301.cfm. Accessed 11 April 2023. 116 Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovk.) (I.C.J. Sept. 25, 1997). See also Preiss (1999). 117 Takano (2018). 118 Ibid. 119 Ibid.

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The international law principles relating to the environment are further based upon different doctrines.120 These include nuisance,121 trespass,122 negligence,123 and neighborhood law.124 For instance, the 1973, 1974, and 1995 Nuclear Tests Cases were based on the doctrine of trespass. It means the radioactive particles produced in 120

Environmental law principles and legal doctrines are related concepts in the legal field but differ in their scope and nature. Environmental law principles are the fundamental concepts or values that guide the development, interpretation, and application of environmental law. They are the basic rules and standards that establish the ethical, moral, and legal obligations of governments and individuals towards the environment. Environmental law principles are typically broad and abstract, such as the polluter pays principle, the precautionary principle, and the principle of sustainable development. They are not codified in statutes but are often developed through international treaties, court decisions, and other legal instruments. On the other hand, legal doctrines are specific legal rules or theories that govern the application and interpretation of law in particular areas of the law. Legal doctrines are typically more concrete and specific than environmental law principles and are developed through court decisions, statutory law, and legal precedents. For example, in tort law, the doctrine of strict liability holds a person liable for damages caused by their actions regardless of fault. 121 The doctrine of nuisance is a legal principle in tort law that deals with the interference with the use and enjoyment of land. It states that if one person’s use of their property unreasonably interferes with another person’s use and enjoyment of their property, then the affected person may seek legal remedies to stop the interference or receive compensation for the damages caused. The interference may be due to noise, odor, pollution, or other factors that impact the health or well-being of the affected party. The doctrine of nuisance aims to balance the competing interests of property owners and prevent one person from unreasonably infringing on the rights of another. The doctrine of nuisance is relevant to nuclear law in situations where the operation of a nuclear facility causes harm or interferes with the use and enjoyment of neighboring properties. For instance, the emission of radiation or nuclear waste from a nuclear plant could pose a risk of harm to nearby communities or property owners. 122 The doctrine of trespass in environmental law states that a person or entity can be held liable for damages caused by their intentional or unintentional intrusion into another person’s property without permission. In the context of nuclear law, the doctrine of trespass can be relevant when it comes to nuclear waste disposal. If a nuclear power plant disposes of nuclear waste in a manner that results in contamination of the soil or water of neighboring properties, it could be considered a trespass. Similarly, if nuclear waste is transported through an area without proper authorization or in a manner that causes harm to nearby residents, it could also be considered a trespass. Under the doctrine of trespass, the impacted property owner may have the right to seek damages or injunctive relief against the entity responsible for the trespass. This could include measures such as cleanup of contaminated areas or compensation for damages to property or health. 123 The doctrine of negligence is a legal principle that holds individuals or organizations liable for harm caused to others due to their failure to exercise reasonable care. In the context of nuclear law, the doctrine of negligence can be applied in cases where a nuclear facility or operator fails to take reasonable measures to prevent accidents or mitigate their consequences. For example, if a nuclear power plant operator fails to properly maintain the facility, resulting in a radiation leak that harms nearby communities, they may be found liable for negligence. Similarly, if a nuclear waste storage facility is improperly managed, leading to contamination of groundwater or other environmental damage, the facility operator may be held liable for negligence. 124 The doctrine of neighbourhood law is related to the principle of good neighbourliness in environmental law. This principle requires countries to act in a way that does not cause harm to other countries, particularly in cases of transboundary environmental harm. In the context of nuclear law, the doctrine of neighbourhood law can apply in situations where a nuclear power plant is located near the border of another country. If the nuclear power plant is not operated with due care and

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France penetrated within particular airspace and atmosphere of Australia and New Zealand, thereby causing injury to humans and resources. In the MOX Plant Case (2001) (Ireland v. UK), meanwhile, Ireland sought to prevent the UK from initiating processes in an atomic plant on the basis of Article 206 of the UN Convention on the Law of the Sea (UNCLOS).125 The International Tribunal for the Law of the Sea (ITLOS) asserted specific obligation to promote the restriction of contamination in the oceanic ecosystem as a basic policy for every nation which is also mentioned in the general international law.126 Hence, the ICJ ordered Ireland and UK to participate in discussions to understand the potential consequences of radioactivity in the Irish Sea occurring due to the establishment of the MOX Plant.127 The Court also requested to undertake actions to limit the deterioration of the aquatic ecosystem that may emerge from the execution of the MOX Plant.128 International environmental law principles, conventions, and cases have provided guidelines for nuclear energy production, establishing precedents for negotiations, compensation, preventive measures, consultation, monitoring, surveillance, and compensatory measures. Therefore, it is important for nuclear newcomers to assess the environmental impact at the outset, ensuring a sustainable approach to production. The evaluation and assessment of environmental impact provide a regulatory basis for governments to uphold their commitment to safe nuclear energy production. In this regard, the Espoo Convention129 and 2003 Kiev Protocol130 offer useful best practices for environmental protection, outlining the responsibilities of States to develop environmental reports, policies, or strategies for proposed nuclear projects within their national borders.

Nuclear Liability Regime Since the inception of nuclear energy development, it has been acknowledged that sufficient measures must be taken to protect the public from potential hazards arising causes harm to the environment or the population of the neighbouring country, the doctrine of neighbourhood law could be invoked to hold the country responsible for the harm caused. 125 International Tribunal for the Law of the Sea (ITLOS): the MOX plant case (Ireland vs. United Kingdom). https://www.jstor.org/stable/20694237. Accessed 11 April 2023. 126 Ibid. 127 Ibid. 128 Ibid. 129 The Espoo (EIA) Convention sets out the obligations of Parties to assess the environmental impact of certain activities at an early stage of planning. It also lays down the general obligation of States to notify and consult each other on all major projects under consideration that are likely to have a significant adverse environmental impact across boundaries. 130 The Kiev Protocol on Pollutant Release and Transfer Registers became international law binding its Parties on 8 October 2009. It is the only legally binding international instrument on pollutant release and transfer registers. Its objective is to enhance public access to information through the establishment of coherent, nationwide pollutant release and transfer registers (PRTRs).

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from the production of atomic energy. Moreover, it has also been recognized that there are significant risks associated with the nuclear industry beyond safety and security concerns, such as nuclear damage compensation, unresolved insurance policies, stakeholder liabilities, and serious legal consequences for offenses related to nuclear technology. Tort laws typically can dictate the responsibilities arising from any catastrophic event or civil harm in the common law countries.131 On the other hand, civil law countries132 may also use tort law as a means of compensating individuals or entities for harm caused by the wrongful act of another. However, the application of tort law may differ between common law and civil law countries. In civil law countries, tort law is typically codified in civil codes, whereas in common law countries, it has developed through judicial decisions. Meanwhile, the principles and rules governing tort law may differ in civil law countries compared to common law countries. In the case of a nuclear accident or damage, conventional tort rules can be used to hold any individual or entity accountable. Additionally, courts can impose tort liability to secure extensive and variable compensation in the event of a nuclear disaster. However, many legal scholars have argued that tort liability is uncertain and subject to the discretion of the courts which imposes specific tort rules and laws when one or more people experience loss, damage, or injury due to an event resulting in nuclear liability.133 A nuclear accident may have a transboundary impact on numerous countries and entities from different jurisdictions, which makes the application of tort complicated.134 Tort laws require identifying the precise injuries of an individual or entity, which is practically difficult to verify in the event of a nuclear disaster.135 131

Common law countries are those that have a legal system based on common law, which is a system of law developed through the decisions of courts and judges, rather than through statutes or codes. Some examples of common law countries include the United States, the United Kingdom, Canada, Australia, New Zealand, India, and many others. 132 The civil law system is used in many countries around the world, including France, Germany, Italy, Spain, Japan, China, Brazil, Mexico, and many others. 133 International Legal Framework for Civil Liability for Nuclear Damage. https://www.iaea. org/nl-webinars/7-international-legal-framework-for-civil-liability-for-nuclear-damage. Accessed 11 April 2023. See also McIntosh (2022). 134 Prominent legal scholar Noah Sachs has argued that the international community has not done enough to provide tort remedies for those affected by cross-border environmental disasters. See Sachs (2007). 135 Tort laws are designed to provide compensation for the harm suffered by an individual or entity due to the wrongful act or negligence of another party. In the case of a nuclear disaster, the harm caused can be widespread and complex, making it difficult to identify and quantify the precise injuries suffered by an individual or entity. For instance, a nuclear accident can cause various types of damages such as property damage, personal injury, loss of income, loss of business opportunities, and even emotional distress. To seek compensation under tort law, the plaintiff must prove that they suffered harm and that the harm was caused by the defendant’s wrongful act or negligence. In the case of a nuclear accident, it can be challenging to determine which specific entity or entities caused the harm, as well as the extent of the harm caused by each entity. Additionally, the harm caused by a nuclear disaster may not manifest immediately, but instead develop over time, making it even more difficult to identify and quantify. Moreover, a nuclear disaster can have a transboundary

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Hence, the liability regime for environmental damage is rooted in the concept of state liability and further guided by international law. Although several treaties on civil liability exist to deal with the cross-border environmental disasters, only a few of them have entered into force, while the majority remain as “unadopted orphans in international environmental law.”136 As a result, an alternative way to deal with cross-border liability is presented through nuclear energy liability conventions. Such an alternative helped the states to enact different national law grounding on the distinguished principles established by various conventions. However, the international nuclear liability regime was also multidimensional in terms of choice of laws and jurisdiction. Therefore, an accident in one country may end up with suits and claims in several other countries, which can result in a lack of compensation. Even after the adoption of the Paris Convention on Third Party Liability in the Field of Nuclear Energy 1960, the necessity for the global liability regime to set national law concerning the third-party liability for the nuclear disaster was perceived.137 Moreover, it was observed that the states, being a member of the Conventions, was struggling to implement the international principles or doctrines on nuclear damage compensation in their national laws. Nonetheless, the IAEA was determined to provide a comprehensive Convention, which could serve as a basis for harmonized and largely uniform rules regarding civil liability for nuclear hazards. With such a target, the IAEA in April–May 1963 came up with the Vienna Convention on Civil Liability for Nuclear Damage.138 The Convention was opened for signing on May 21, 1963, and came into force on November 12, 1977. Despite that only five nations were needed to ratify it, the Vienna Convention took 15 years to enforce. Several states postponed becoming a signatory due to the excessive similarity of its provisions with the Paris Convention of 1960. Most of the countries that produce nuclear energy were already party to the Convention, resulting in the adoption of two identical conventions. However, neither convention provided clear guidelines for nuclear damage or liability concerns for third parties. It was only after the Chernobyl nuclear catastrophe in 1986 that the international community took

impact, affecting multiple countries and different entities from diverse jurisdictions. This makes it challenging to apply the traditional tort laws, as the determination of liability requires a clear identification of the entity or entities responsible for the harm, which is difficult to establish in the case of a nuclear disaster. 136 Sachs (2007). 137 The Paris Convention was a crucial step towards addressing the issue of nuclear liability, as it provided a framework for liability and compensation in the event of a nuclear incident. However, the Convention only applied to the signatory states and did not cover all aspects of liability and compensation. In particular, the Convention did not address issues related to transboundary harm or long-term effects of radiation exposure. Furthermore, the Convention did not prescribe specific limits of liability for nuclear damage, leaving it up to each state to determine its own limits. This led to a lack of consistency in national laws and difficulty in ensuring adequate compensation for victims of nuclear accidents. 138 See Vienna Convention on Civil Liability for Nuclear Damage. https://www.iaea.org/topics/nuc lear-liability-conventions/vienna-convention-on-civil-liability-for-nuclear-damage. Accessed 11 April 2023.

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significant steps to mitigate the disparities between the Vienna and Paris Conventions and further establish nuclear liability principles. The Chernobyl accident in 1986 brought about a widespread realization of the need for improved public protection from the effects of nuclear disasters. It highlighted the inadequacy of the provisions of both the Paris and Vienna Conventions in several ways. There was an urgent need to increase the number of liabilities, broaden the types of damages, define jurisdiction, improve insurance protection, and provide compensation for victims in any affected nation.139 The main concern was that a nuclear accident with cross-border impact would require equal protection for victims regardless of their location, i.e., whether they were in contracting or non-contracting parties to the Conventions. It was crucial for the international community to call for a uniform nuclear liability regime. Notable amendments were proposed for both the Vienna and Paris Conventions. Globally, the IAEA “followed a two-track approach: to improve the existing civil liability regime, including revision of the Vienna Convention for which the IAEA is depositary; and, to develop a comprehensive international liability regime.”140 Following numerous discussions, representatives from over 80 countries agreed in 1997 to incorporate a Protocol to amend the Convention on Supplementary Compensation, also known as CSC, and the 1963 Vienna Convention on Civil Liability for Nuclear Damage.141 However, it took much longer time to make the necessary amendments to the Paris Convention.142 Finally, on February 12, 2004, the Protocol to Amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy of July 29, 1960 (2004 Protocol) was adopted. As a result of the reforms to the Paris Convention, the Brussels Convention was also revised. The revisions to the Paris and Brussels Conventions were to some extent aligned and made them compatible with the 1997 Vienna Protocol and CSC.143 Once again, the Fukushima nuclear disaster asked for the discussion on nuclear liability and damage compensation standard. The IAEA (July 2012 and August 2012) concerning the disaster, stresses the urgency to obtain a “global nuclear liability regime”.144 In June 2011, the IAEA assembled a Ministerial Conference and ratified a “Draft Action Plan on Nuclear Safety” (Action Plan) in order to evaluate the safety of nuclear power as an aftermath of the Fukushima accident. Considering the actions by the IAEA Action Plan, the International Expert Group on Nuclear Liability (INLEX) prescribed activities to obtain such a global regime.145 In general, the Action Plan suggested the countries to join the prevailing international regimes, receiving the benefit of the broad spectrum of flexibilities provided by these conventions.146 139

Handl (1988). Ram Mohan (2015). 141 Ibid. 142 Ibid. 143 Schwartz (2010). 144 See Heffron et al. (2016). 145 See also McIntosh (2022). 146 Ibid. 140

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Many countries continue to pursue nuclear power despite the catastrophic outcomes of events like Chernobyl and Fukushima.147 One reason for nuclear technology’s continued popularity is its technical efficiency in generating electricity. However, it is worth noting that nations supplying nuclear fuel or technology to nuclear newcomers have restricted themselves from potential liability claims through bilateral agreements.148 Third parties are pushing for changes in newcomer countries’ national liability laws for nuclear energy by promoting distinctive principles such as liability limits and liability channeling. In this scenario, victims of nuclear accident may find it difficult to hold operators or third parties liable and claim compensation for damages. Even if liability is established, victims may struggle to ensure the jurisdictional capability of national courts. It is necessary to establish a distinct regime to ensure immediate compensation for victims and guarantee secure payment through insurance coverage. To achieve this goal, it is essential to improve the principles of nuclear liability regulations, including channeling sole and strict liability to the operator, exclusive jurisdiction for national courts, financial assurance of liability, and liability confined in amount and time. By doing so, harmonization and uniformity can be sought and implemented.

Nuclear Non-proliferation Regime and Safeguards The nuclear non-proliferation regime is a framework of international laws, institutions, and agreements aimed at preventing the proliferation of nuclear weapons and promoting their eventual elimination. This regime encompasses various treaties, initiatives by international organizations, and multilateral and bilateral agreements designed to prevent the development and spread of nuclear weapons. Since 1945, laws governing the peaceful use of nuclear technology have been developed to prevent the proliferation of nuclear weapons. The nuclear non-proliferation regime is a product of the evolution of these laws, aimed at both ensuring compliance with non-proliferation conditions, and protecting humanity from the harmful effects of nuclear technology. The terms “regime” and “non-proliferation” are often linked, as both refer to the system of international cooperation for preventing the spread of nuclear weapons.149 The non-proliferation regime is built around two main pillars: preventing the spread of nuclear weapons and promoting the peaceful use of nuclear technology. However, according to Stephen M. Schwebel, an American jurist who served as an ICJ judge, “the regime of the Non-Proliferation Treaty constitutes more than acquiescence by the non-nuclear States in the reality of possession of nuclear weapons by the five 147

But it should be noted that while some countries have indeed continued to pursue nuclear power, others have moved away from it or slowed down their efforts due to concerns about safety and the long-term storage of nuclear waste. 148 The potential for liability claims through bilateral agreements is also a complex issue that may depend on the specific terms of those agreements. 149 Smith (1987).

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nuclear powers.”150 The statement suggests that the NPT151 is more complex than just a treaty that recognizes the possession of nuclear weapons by the five nuclear powers (the US, Russia, China, France, and the UK) and acquiesces to their status as nuclear states. The NPT has a dual nature.152 On the one hand, it recognizes the five nuclear powers and their right to possess nuclear weapons, while, on the other, it also seeks to prevent the spread of nuclear weapons to other countries.153 Non-nuclear states who join the NPT agree not to develop or acquire nuclear weapons in exchange for assistance in developing peaceful nuclear technology and a commitment by the nuclear powers to eventually disarm their nuclear arsenals. Several other bilateral, multilateral, and regional agreements have complemented or supplemented the NPT. Other than NPT, the following treaties form the basis for the existing Nuclear-Weapon-Free-Zones (NWFZs): • Treaty of Tlatelolco—Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean154 ; • Treaty of Rarotonga—South Pacific Nuclear Free Zone Treaty155 ; • Treaty of Bangkok—Treaty on the Southeast Asia Nuclear Weapon-Free Zone156 ; • Treaty of Pelindaba—African Nuclear-Weapon-Free Zone Treaty.157 • Treaty on a Nuclear-Weapon-Free Zone in Central Asia.158

150

Dissenting opinion of Vice-President Schwebel. https://www.icj-cij.org/sites/default/files/caserelated/95/095-19960708-ADV-01-09-EN.pdf. Accessed 11 April 2023. 151 The NPT is a universal agreement aimed at achieving these goals. Opened for signature in 1970 and in force since 1970, the NPT has been ratified by almost all countries in the world. Its main objectives are to prevent the spread of nuclear weapons, promote the peaceful use of nuclear technology, and eventually achieve nuclear disarmament. The NPT is considered the cornerstone of the global nuclear non-proliferation regime and is reviewed every five years. The most recent review conference was held in 2021. 152 Lee and Karim (2022). 153 Ibid. 154 See Treaty for the Prohibition of Nuclear Weapons in Latin America (Tlatelolco Treaty). https:// www.iaea.org/publications/documents/treaties/treaty-prohibition-nuclear-weapons-latin-americatlatelolco-treaty. Accessed 12 April 2023. 155 See United Nations. Treaty of Rarotonga. https://www.un.org/nwfz/fr/content/treaty-raroto nga#:~:text=The%20Treaty%20of%20Rarotonga%20contributes,member%20states%20(Articl e%205). Accessed 12 April 2023. 156 See United Nations. Treaty of Bangkok. https://www.un.org/nwfz/fr/content/treaty-bangkok. Accessed 12 April 2023. 157 See United Nations. Treaty of Pelindaba. https://www.un.org/nwfz/content/treaty-pelindaba#: ~:text=The%20African%20Nuclear%2DWeapon%2DFree,force%20on%2015%20July%202009. Accessed 12 April 2023. 158 See United Nations. Central Asian Nuclear-Weapon-Free Zone Treaty. https://www.un.org/ nwfz/content/treaty-nuclear-weapon-free-zone-central-asia#:~:text=The%20Central%20Asian% 20Nuclear%2DWeapon,test%2C%20or%20possess%20nuclear%20weapons. Accessed 12 April 2023. See also Lee EYJ, The Complete Denuclearization of the Korean Peninsula, Chinese Journal of International Law 9(4), 811–812.

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The IAEA also published a series of Safeguards159 to ensure that a supervisory role must be played by the Agency to control the technology and to stop further utilization of the technology for any military purposes. In reality, the IAEA safeguards consist of a set of measures designed to verify that nuclear materials and facilities are used only for peaceful purposes. The safeguards system includes inspections, surveillance, and the use of advanced technologies to detect any unauthorized activity related to nuclear materials or facilities. The IAEA safeguards apply to all states that have signed the NPT, as well as to non-NPT states that have agreed to abide by the safeguards.160 One of the most critical aspects of the IAEA safeguards is their ability to detect any attempts to divert nuclear materials for military purposes. This is achieved through a combination of measures, including the monitoring of nuclear materials throughout their lifecycle, the inspection of nuclear facilities to ensure compliance with safeguards agreements, and the use of advanced technologies to detect any unauthorized activity. By providing a high level of assurance that nuclear materials are being used solely for peaceful purposes, the IAEA safeguards play a critical role in preventing nuclear proliferation and promoting global security. The IAEA safeguards have been effective in detecting and deterring nuclear proliferation. For example, in the 1990s, the IAEA uncovered a clandestine nuclear weapons program in Iraq, which eventually led to the dismantlement of the program.161 The IAEA safeguards have also played a critical role in preventing the proliferation of nuclear weapons to other countries, such as North Korea162 and Iran.163 In addition to their critical role in nuclear non-proliferation, the IAEA safeguards play an important role in promoting the peaceful use of nuclear energy. By providing assurances that nuclear materials and facilities are being used solely for peaceful purposes, the safeguards system encourages international cooperation in the development and use of nuclear technology for peaceful purpose. Nonetheless, the IAEA safeguards face a number of challenges. One of the most significant challenges is the need for greater transparency and cooperation from states regarding their nuclear 159

For example, see IAEA Safeguards. https://www.iaea.org/sites/default/files/safeguards_web_ june_2015_1.pdf. Accessed 12 April 2023. 160 See Safeguards agreements. https://www.iaea.org/topics/safeguards-agreements. Accessed 12 April 2023. 161 Dillon and Baute (2001). 162 In the case of North Korea, the country withdrew from the Nuclear Non-Proliferation Treaty (NPT) in 2003 and expelled IAEA inspectors from its nuclear facilities. This led to concerns that North Korea was developing nuclear weapons. However, the IAEA continued to monitor the situation through satellite imagery and other means. This monitoring provided important information about North Korea’s nuclear program, which was used in diplomatic efforts to address the issue. Despite these efforts, North Korea continued to develop its nuclear program and conducted several nuclear tests. 163 In the case of Iran, the country was suspected of pursuing nuclear weapons in the early 2000s. In response, the IAEA conducted a series of inspections and investigations to determine the nature of Iran’s nuclear program. These efforts ultimately led to the negotiation of the Joint Comprehensive Plan of Action (JCPOA) in 2015, which placed significant limitations on Iran’s nuclear program in exchange for the lifting of international sanctions. The IAEA continues to monitor Iran’s compliance with the JCPOA.

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activities.164 In some cases, states have been reluctant to provide the necessary information or access to their nuclear facilities, which can make it difficult for the IAEA to verify compliance with safeguards agreements. Another challenge is the need for continued investment in the development of new technologies to detect and deter nuclear proliferation.165 As nuclear technology continues to evolve, so too must the safeguards system, in order to stay ahead of potential proliferators.

Conclusion The journey of international nuclear laws began in the mid-twentieth century. The focus of the international nuclear regulatory regime was on technical and policy institutions to guide the peaceful uses of nuclear energy from the mid-1940s to the end of the 1950s. Several conventions and recommendations were adopted between the mid-1950s and 1960s to establish a comprehensive liability regime for nuclear accidents and apply radiation protection standards. Further, various instruments were adopted in the 1970s to cease nuclear weapons proliferation and adopt safeguard measures for peaceful nuclear technology. The Three Mile Island accident in the US and the Chernobyl disaster in Ukraine in the late 1990s had a significant impact on the development of international laws and regulations regarding nuclear safety. In response to those disasters, the IAEA established a series of new guidelines and regulations on nuclear safety, including the measures to improve reactor design and operation, enhance emergency response capabilities, and improve nuclear waste management. Beginning with the new millennium, various conventions were amended or adopted to address nuclear security issues. However, the Fukushima accident in 2011 revived nuclear safety concerns and led to a review of national programs for nuclear power plant safety and emergency response. Institutional, legal, and regulatory frameworks to govern safety, security, safeguards, and liability are developing with crossfertilization of synergies. The IAEA’s legislative assistance program emphasizes the inter-relationships between these aspects and the practical implementation of international legal instruments. Therefore, a nuclear newcomer must conduct a comprehensive review of all relevant international nuclear energy laws and legislative arrangements. Many international agreements, such as conventions and treaties, focus on specific nuclearsensitive issues, and compliance with these instruments has both external and internal aspects. When a state approves or ratifies such an instrument under its national laws, it is bound by the obligations arising from that instrument in its relations with other states parties, provided the instrument has entered into force. Some states prefer to enact a robust Nuclear Energy Act backed by a series of regulations, while others prefer to enact separate laws for the different areas to be 164 165

See Scheinman (2009). Ibid.

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covered, which need to be supplemented by regulations as well. It may be important to examine which approach benefits the national nuclear stakeholders. However, what is essential is for the legislation to be transparent and understandable, with easy access for stakeholders and the general public. In view of these factors, several States have considered it easier to follow detailed international nuclear laws addressing all the issues relating to nuclear safety, security, safeguard, and liability. In this chapter, we mark an important milestone as it lays down the bedrock for analysis through a comprehensive review of existing literature, laws, cases, international treaties, conventions, and regulations connected to nuclear energy production.

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Gill AS (2020) Nuclear security summits: a history. Palgrave Macmillan, Geneva Gonzalez AJ (1992) Fundamental principles of protection and safety for nuclear power. IAEA Bull 34(2):10–14 Gupta J, Schmeier S (2020) Future proofing the principle of no significant harm. Int Environ Agreements Politics Law Econ 20:731–747 Handl G (1988) Transboundary nuclear accidents: the post-Chernobyl multilateral legislative agenda. Ecol Law Quart 15(2):203–248 Heffron RJ, Ashley SF, Nuttall WJ (2016) The global nuclear liability regime post Fukushima Daiichi. Prog Nucl Energy 90:1–10 IAEA (1995) The principles of radioactive waste management; radioactive waste safety standards programme. IAEA, Vienna, Austria IAEA (2018) IAEA safety glossary: terminology used in nuclear safety and radiation protection. https://www-pub.iaea.org/MTCD/publications/PDF/PUB1830_web.pdf. Accessed 3 Apr 2023 Karim R et al (2018) Legal and regulatory development of nuclear energy in Bangladesh. Energies 11(10):2847 Karim R, Munir AB (2018) A historical overview of nuclear energy regulations in ASEAN. SEJARAH J Dept Hist 27(1):11–25 Kelleher DS (2017) Public participation in the siting of nuclear waste facilities: international lessons and the Korean experience. Korea Observer 48(2):277 Kermisch C, Taebi B (2017) Sustainability, ethics and nuclear energy: escaping the dichotomy. Sustainability 9(3):446 Koskenniemi M (2006) What is international law for? In: Evans MD (ed) International law, 3rd edn. Oxford University Press, New York, p 32 Lamm V (2017) Reflections on the development of international nuclear law. Nucl Law Bull 99:31 Langlois L (2013) IAEA action plan on nuclear safety. Energ Strat Rev 1(4):302–306 Lee EYJ, Karim R (2022) Denuclearization of the Korean Peninsula. In: The US-DPRK peace treaty: a commentary. Springer, Singapore, pp 53–72 Lindskog S, Sjöblom R, Labor B (2011) Sustainability of nuclear energy with regard to decommissioning and waste management. WIT Trans Ecol Environ 143:303–314 McBrayer S (1987) Chernobyl’s legal fallout-the convention on early notification of a nuclear accident. Georgia J Int Comp Law 17:303 McIntosh S (2022) Nuclear liability and post-Fukushima developments. In: IAEA (ed) Nuclear law. T.M.C. Asser Press, The Hague Mishra S (2017) Defence beyond design: contours of India’s nuclear safety and security. Routledge, New York, p 9 Nanda VP (2006) International environmental norms applicable to nuclear activities, with particular focus on decisions of international tribunals and international settlements. Denver J Int Law Policy 35(1):47–65 Peiry KK (2011) Prior informed consent. Max Planck Encyclopedia of Public International Law. Posner E (2003) Do states have a moral obligation to obey international law? Stanford Law Rev 55(5):1901–1919 Preiss EL (1999) The international obligation to conduct an environmental impact assessment: the ICJ case concerning the Gabcikovo-Nagymaros project. NYU Environ Law J 7:307–351 Ram Mohan MP (2015) The development of institutions and liability laws relating to nuclear energy. Nuclear Energy and Liability in South Asia: Institutions, Legal Frameworks and Risk Assessment within SAARC, pp 19–52 Sachs N (2007) Beyond the liability wall: strengthening tort remedies in international environmental law. UCLA Law Rev 55:837–904 Scheinman AM (2009) Calling for action: the next generation safeguards initiative. Nonproliferation Review 16(2):257–267 Schwartz J (2010) Liability and compensation for third party damage resulting from a nuclear incident. International nuclear law: history, evolution and outlook, OECD-NEA, Paris, pp 307– 354

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Chapter 4

Nuclear Energy in Asia: Uncovering the Challenges through the 3S+L Framework

Introduction Since the end of World War II, nuclear energy has emerged as one of the most promising sources of power in Asia as well as the world because of its ability to provide energy at large scales with minimal carbon emissions. However, the benefits of nuclear power also come with significant challenges, particularly around safety, security, safeguard, and liability. For example, the Fukushima incident highlighted the need for robust safety measures, including improved emergency preparedness and response, as well as the need for more rigorous regulatory oversight. Since then, countries have taken steps to improve safety, including conducting safety reviews, upgrading safety systems, and enhancing emergency response capabilities. Similarly, security has been a major concern in Asia, given the regional history of geopolitical tensions and the risk of nuclear terrorism. The theft or unauthorized use of nuclear materials or facilities could have catastrophic consequences. Furthermore, safeguards have been a critical element of nuclear governance in Asia, particularly given the risk of nuclear proliferation. Countries in the region have made commitments to non-proliferation, including joining the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the International Atomic Energy Agency (IAEA)’s Additional Protocol. These measures require them to submit to regular inspections and provide information on their nuclear activities to the international community. However, there have been concerns about compliance, particularly in North Korea, Israel, and Iran, which has been accused of violating its non-proliferation commitments. Nuclear liability has also become an increasingly important issue in Asia, particularly in the wake of the Fukushima disaster. Nuclear accidents can have significant economic and social impacts, and determining liability in such cases can be a complex and contentious process. Many countries in Asia have established liability regimes to address this issue, by requiring nuclear operators to obtain insurance or provide financial guarantees. However, these regimes vary in their scope and effectiveness,

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 R. Karim and E. Y. J. Lee, Navigating Nuclear Energy Lawmaking for Newcomers, International Law in Asia, https://doi.org/10.1007/978-981-99-5708-8_4

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and there have been ongoing debates about the appropriate level of liability and compensation in case of a nuclear accident. Hence, this chapter examines nuclear governance challenges in Asia, exploring how the 3S + L framework is being used to ensure the safe and responsible use of nuclear energy in the region. To begin, we provide an overview of current nuclear energy development plans in Asia, examining influential players with existing nuclear energy production capabilities, such as China, India, Iran, Japan, Pakistan, South Korea, and Taiwan, as well as newcomers in the field, including Bangladesh, Egypt, and Saudi Arabia. Next, we take a deep dive into regional nuclear governance in Asia, highlighting the critical challenges surrounding nuclear safety, security, safeguards, and liability. By shedding light on these challenges, we aim to identify areas for improvement and encourage dialogue about best practices for addressing them. While this chapter focuses on the challenges facing nuclear governance in Asia, Chap. 5 deals the crucial process of strengthening nuclear governance in the region. Together, these chapters provide a comprehensive analysis of the current state of nuclear governance in Asia and offer insights into the measures being taken to ensure the safe and responsible use of nuclear energy in the region.

Nuclear Energy in Asia Nuclear energy has been a significant source of power generation in Asia. Many countries in the region invest in nuclear technology to meet their increasing energy demands. Japan, South Korea, and China are among the leading countries in the development and use of nuclear power, with India and Pakistan also operating nuclear power plants. However, the use of nuclear energy in Asia has been controversial due to safety concerns, particularly after the Fukushima disaster in Japan in 2011. Nevertheless, some countries continue to see nuclear energy as a viable option for meeting their energy needs and reducing their carbon emissions, while others are exploring alternative sources of energy. This section discusses the prominent nations in Asia that have established themselves as major producers of nuclear energy. We also explore the emergence of new players in the nuclear arena. Additionally, we examine those countries in the region that have opted to abandon their pursuit of nuclear energy production.

Experienced Nuclear Energy Producers in Asia China China had a total of 55 operating reactors by mid-2022, including the impressive China Experimental Fast Reactor (CEFR), boasting a combined capacity of around

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52 GW.1 These reactors generated 383.2 TWh of electricity in 2021, making up only 5% of the country’s total electricity production. In comparison, wind and solar energy generation saw a much larger increase of 40% and 25%, respectively, while coal grew by only 9%.2 Remarkably, China’s nuclear fleet is the youngest and most advanced in the world, with almost 80% of its 41 reactors having connected to the grid in the past decade. In March 2022, the National Energy Administration (NEA) unveiled the “14th Fiveyear Plan for Modern Energy System,” which aimed to raise China’s installed nuclear power capacity to 70 GW by 2025.3 Even though the NEA still aims for 70 GW by 2025, the combined capacity of operational and under-construction plants due to be operating before 2026 is only around 61 GW.4 This implies that the 70 GW target is not realistically achievable. The NEA’s plan also aims to increase the share of electricity generated from non-fossil fuels to 39% by 2025, higher than 32.6% in 2021, but mainly from renewables.5 China is targeting a total installed capacity of 1200 GW for wind and solar power by 2030, a goal that experts predict may even be met earlier by 2025.6 China also aspires to export nuclear power plants to boost industrial production,7 but so far has only exported to Pakistan. Other international projects, such as those in Romania and the UK, have not progressed to the construction stage. Although CNNC signed an agreement in February 2022 to construct a Hualong-One nuclear plant in Argentina, it remains uncertain how the project will unfold.

India India currently operates 19 nuclear power reactors with a combined capacity of 6.3 GW.8 However, the Rajasthan-1 reactor is considered permanently closed by

1

World Nuclear Industry Status Report (2022). Ibid., See also China Energy Portal. 2021 electricity and other energy statistics (preliminary). https://chinaenergyportal.org/2021-electricity-other-energy-statistics-preliminary/. Accessed 14 April 2023. 3 Global Times. China to expand deployment of nuclear power in clean, secure energy push. https:// www.globaltimes.cn/page/202203/1256556.shtml. Accessed 14 April 2023. 4 World Nuclear Industry Status Report (2022). 5 Ibid. 6 Myllyvirta L, Zhang X. Analysis: What do China’s gigantic wind and solar bases mean for its climate goals? https://www.carbonbrief.org/analysis-what-do-chinas-gigantic-wind-and-solarbases-mean-for-its-climate-goals/. Accessed 14 April 2023. 7 See IAEA. How China has Become the World’s Fastest Expanding Nuclear Power Producer. https://www.iaea.org/newscenter/news/how-china-has-become-the-worlds-fastest-expanding-nuc lear-power-producer. Accessed 14 April 2023. 8 World Nuclear Industry Status Report (2022). 2

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WNISR because it has not generated power since 2004, despite being listed as operational by NPCIL and the IAEA’s Power Reactor Information System (PRIS).9 Additionally, Tarapur-1, Tarapur-2, and Madras-1 have not produced electricity in 2021 and the first half of 2022 and are classified as LTO.10 The most recent reactor to connect to the grid, Kakrapar-3, has experienced performance issues and is seeking to delay commercial operation until July 9, 2022.11 In 2021, nuclear power contributed 39.8 TWh of net electricity, representing 3.2% of total power generation.12 India is currently constructing eight reactors with a total capacity of 6.0 GW, including four VVER-1000 s at Kudankulam, which may face delays due to logistical and ocean freight problems related to the war in Ukraine.13 The government has announced that the four reactors are likely to be commissioned in November 2023, which is 36 months later than the original target date of November 2020.14

Iran Iran’s nuclear program dates back to the 1950s and was initially launched under the Atoms for Peace program with US support.15 At present, Iran operates only one nuclear reactor, Bushehr-1, with a net capacity of 915 MWe.16 In 2021, it generated 3.24 TWh, accounting for less than 1% of the country’s total electricity generation.17 In 2014, the Atomic Energy Organisation of Iran (AEOI) reached a preliminary agreement with Russia’s Rosatom to build two more nuclear power reactors at Bushehr.18 Although the work on Bushehr-2 resumed in 2017, the construction of these reactors has faced delays. In June 2022, AEOI Director Mohammad Eslami admitted that the

9

Herald (2014). LTO can also stand for “Long-Term Operation,” which is a strategy to extend the operating life of existing nuclear power plants beyond their original design life. This involves conducting safety evaluations, making necessary upgrades and modifications, and implementing maintenance programs to ensure continued safe operation of the plant. 11 Spansen. At India’s Largest Indigenous Nuclear Reactor, Ventilation and Cooling Issues Have Halted Operations. https://www.spansen.com/2022/04/at-indias-largest-indigenous-nuclear.html. Accessed 14 April 2023. 12 IAEA (2022). 13 Sabha R. Unstarred Question No. 3286: Status of Work at Kudankulam Power Plant. http://dae. gov.in/writereaddata/rsusq3286.pdf. Accessed 14 April 2023. 14 Ibid. 15 World Nuclear Industry Status Report (2022), p. 319. 16 Ibid. 17 Ibid. 18 WNN. Russia, Iran discuss further reactors. https://www.world-nuclear-news.org/NN-RussiaIran-discuss-further-reactors-1403144.html. Accessed 15 April 2023. 10

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construction process had experienced a 28-month delay.19 Although Iranian officials have claimed that the two new reactors will be completed in 2024 and 2026,20 the ambitious deadlines seem questionable.

Japan In the fiscal year 2021, Japan maintained a steady count of ten “operable” nuclear reactors, which collectively produced just under 10 GWe of power.21 The average capacity factor experienced a marked improvement, rising from 15.5 to 21.1%, resulting in a significant increase in nuclear power generation from 38.8 to 67.8 TWh.22 As a consequence, the share of nuclear power generation doubled from 3.9 to 7.9%.23 Eleven years after the Fukushima disaster, only pressurized water reactors (PWRs) are in operation, although five boiling water reactors (BWRs) have satisfied the new regulatory requirements introduced in 2013.24 The restart of these BWRs has been delayed by several factors, including a lack of approval from local governments, ongoing work on additional safety measures, and a nuclear security violation in 2021.25 Over the past year, various court rulings and strict regulations imposed by the Nuclear Regulation Authority (NRA) across Japan have highlighted the ongoing uncertainties surrounding future reactor operation. On May 31, 2022, the Sapporo District Court ruled that Hokkaido Electric Power Co.’s Tomari nuclear plant did not have adequate tsunami protection and lacked sufficient evidence of the safety of spent nuclear fuel stored at the plant.26 The court prohibited the utility company from restarting all three reactors at the plant in Hokkaido, although it rejected the request for decommissioning.27 In 2020, a serious breach of nuclear security regulations occurred at the Kashiwazaki Kariwa plant in Niigata Prefecture, resulting in TEPCO

19

NEI Magazine. Iran begins concrete pouring for wall at Bushehr 2. Nuclear Engineering International. https://www.neimagazine.com/news/newsiran-begins-concrete-pouring-for-wall-atbushehr-2-9806133. Accessed 15 April 2023. 20 Tehran Times. Construction of phases 2, 3 of Bushehr nuclear plant has started. https://www. tehrantimes.com/news/457339/Construction-of-phases-2-3-of-Bushehr-nuclear-plant-has-started. Accessed 15 April 2023. 21 World Nuclear Industry Status Report (2022), p. 105. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. 26 Ibid. 27 Kyodo News. Japan court rules against restarting nuclear power plant in Hokkaido. https://eng lish.kyodonews.net/news/2022/05/44f2349084b6-urgent-court-rules-against-restarting-nuclearpower-plant-in-hokkaido.html. Accessed 16 April 2023.

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being barred from loading fresh nuclear fuel in April 2021 by the NRA.28 An interim report released by the NRA on April 27, 2022, recommended that TEPCO enhance nuclear security measures at its facilities.29 Japan’s latest Strategic Energy Plan, which prioritizes renewable energy sources, recognizes nuclear power as an option for achieving carbon neutrality by 2050.30 The plan maintains a basic policy of reducing dependence on nuclear power as much as possible and does not explicitly mention constructing new nuclear power plants.31

Pakistan Pakistan’s nuclear energy production has surged significantly with the operation of six reactors that have a combined capacity of 3.3 GW.32 In 2021, the country’s nuclear electricity output increased to 15.8 TWh from 9.6 TWh in 2020, propelled by the launch of a new reactor early in the year.33 This resulted in nuclear energy’s share in electricity production rising from 7.1% in 2020 to a historic peak of 10.6% in 2021.34 Furthermore, Pakistan’s second Hualong-One reactor, Kanupp-3 or Karachi3, became operational outside China, following Kanupp-2, which connected to the grid in March 2021.35 Both reactors were constructed by China National Nuclear Corporation (CNNC) outside Karachi.36 In 2017, CNNC and Pakistan Atomic Energy Commission (PAEC) signed an agreement to construct a Hualong-One reactor at Chashma.37 The shutdown of Kanupp-1, a 50-year-old CANDU reactor imported from Canada, in August 2021, left China as the sole supplier of nuclear power plants to Pakistan. However, this import reportedly caused significant financial difficulties

28

Osamu Tsukimori. Tepco lapse a wake-up call for Japan’s nuclear security protocols, expert says. The Japan Times. https://www.japantimes.co.jp/news/2021/04/15/national/nra-niigata-tepconuclear-security/. Accessed 16 April 2023. 29 Ibid. 30 Strategic Energy Plan. Ministry of Economy, Trade and Industry, Government of Japan. https:// www.enecho.meti.go.jp/en/category/others/basic_plan/pdf/6th_outline.pdf. Accessed 16 April 2023. 31 Ibid. 32 World Nuclear Industry Status Report (2022), p. 321. 33 Ibid. 34 Ibid. 35 Khaleeq Kiani. K-3 nuclear power plant connected to national grid. Dawn. https://www.dawn. com/news/1678278. Accessed 16 April 2023. 36 CNNC. Chinese overseas nuclear power unit passes final acceptance. China National Nuclear Corporation. https://en.cnnc.com.cn/2019-12/10/c_446316.htm. Accessed 16 April 2023. 37 WNN. Pakistan, China agree to build Chashma 5. World Nuclear News. https://www.world-nuc lear-news.org/Articles/Pakistan,-China-agree-to-build-Chashma-5. Accessed 16 April 2023.

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due to the challenges of repaying foreign and local loans, and safety concerns were raised due to the plant’s proximity to a city with over 22 million inhabitants.38

South Korea South Korea currently operates 24 nuclear reactors with three more under construction.39 South Korea’s nuclear fleet is owned and operated by Korea Hydro and Nuclear Power (KHNP) and is located at the Hanbit, Hanul, Kori, and Wolsong sites, with the Kori site being the largest nuclear power plant globally, with seven reactors generating 7489 MW.40 According to the Korean Statistical Information Service (KOSIS), nuclear power accounted for 27.5% of electricity generation in 2021, providing 158 TWh (gross), a slight decrease from 29% in 2020.41 South Korea’s future energy policy, particularly its reliance on nuclear power generation, has been a contentious political issue. Despite the current President Yoon Suk Yeol’s pro-nuclear stance, a public survey showed that around 47.5% of respondents favored continuing the nuclear-phaseout policy.42 Surprisingly, the Ministry of Industry, Trade, and Energy under Yoon’s administration proposed a draft of the 10th Basic Plan for Long-term Electricity Supply and Demand, which decreases the share of new and renewable energy and increases the share of nuclear power.43 The administration has also pledged significant investments in the nuclear industry and the development of small modular reactors.44

Taiwan Taiwan Power Company, a government-owned utility monopoly, operates three nuclear reactors at Kuosheng and Maanshan.45 The nuclear generation in Taiwan decreased by 11.6% to 26.8 TWh in 2021, accounting for 10.8% of the country’s electricity production.46 The government’s official strategy remains with the nuclearphaseout, despite the opposition of the Nationalist Party (KMT), which has called 38

Mushtaq Ghumman. N-power plants set up by China face financial problems. Business Recorder. https://www.brecorder.com/news/40166993/n-power-plants-set-up-by-china-face-financ ial-problems. Accessed 16 April 2023. 39 World Nuclear Industry Status Report (2022), p. 116. 40 Ibid. 41 Ibid. 42 CBS Nocutnews. 이준석 사태 속 尹지지 33%…‘부정 전망’ 46%는 숙제 [Yoon’s approval rating 33% in the middle of Lee Junseok scandal.. the 46% negative outlook is Yoon’s task]. https://www. nocutnews.co.kr/news/5802134. Accessed 16 April 2023. 43 World Nuclear Industry Status Report (2022), p. 118. 44 Ibid. 45 World Nuclear Industry Status Report (2022), p. 122. 46 Ibid.

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for the extension of existing reactors and the construction of new ones.47 A referendum in December 2021 rejected a proposal to resume construction of two reactors at the Lungmen Nuclear Power Plant.48 Taipower has already closed two reactors. Kuosheng-1 was permanently shut down six months earlier than scheduled due to insufficient spent fuel storage capacity,49 while Kuosheng-2 was scheduled to shut down on March 15, 2023. Meanwhile, the two PWRs at Maanshan will retire on July 26, 2024, and May 17, 2025, respectively.50 Taiwan has seen a significant rise in public opposition to nuclear power, following the Fukushima Daiichi disaster, which acted as a catalyst for its shift toward renewable energy.51 Taiwanese government aims to achieve net-zero by 2050, with natural gas providing 50% of gross electricity production by 2025.52

United Arab Emirates The United Arab Emirates (UAE) is currently engaged in the construction of four APR-1400 reactors at Barakah, boasting a total capacity of 5.6 GW.53 Notably, the first two units have already been completed and began commercial operation in March 2022 and April 2021, respectively, after being connected to the grid in September 2021 and August 2020.54 These two reactors produced a combined electricity of 1.8 TWh, accounting for 1.3% of the nation’s total electricity in 2021.55 Korea Electric Power Company (KEPCO) and the Emirates Nuclear Energy Corporation (ENEC) jointly finance the Barakah project.56 ENEC announced in November 2021 that the third reactor, Barakah-3, is scheduled to begin producing electricity in 2023.57 The UAE aims to achieve 50% clean energy by 2050, with renewables accounting for 44% and nuclear power accounting for 6%.58 47

Hsiao-kuang S, Chung J. KMT calls for extensions of nuclear power licenses. Taipei Times. https://www.taipeitimes.com/News/taiwan/archives/2022/04/23/2003777091. Accessed 16 April 2023. 48 World Nuclear Industry Status Report (2022), p. 124. 49 Ibid. 50 Ibid. 51 Ibid, 128. 52 Ibid. 53 World Nuclear Industry Status Report (2022), p. 322. 54 Xiapo S. UAE adds 1400 megawatts of nuclear energy to national electricity grid. The Star. https://www.thestar.com.my/news/world/2022/03/25/uae-adds-1400-megawatts-of-nuc lear-energy-to-national-electricity-grid. Accessed 17 April 2023. 55 World Nuclear Industry Status Report (2022), p. 322. 56 Ibid. 57 ENEC. At COP 26, ENEC Continues to Deliver Clean Energy Transition with Unit 3 Construction Completion of the Barakah Nuclear Energy Plant. https://www.enec.gov.ae/news/latest-news/ at-cop-26-enec-continues-to-deliver-clean-energy-transition-with-unit-3-construction-completed/. Accessed 17 April 2023. 58 World Nuclear Industry Status Report (2022), p. 323.

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Nuclear Newcomers in Asia Bangladesh In Bangladesh, the twin VVER-1200 reactors under construction at Rooppur began in November 2017 and July 2018.59 Fuel loading for the first reactor is scheduled for Q4 2023, with Unit 1’s grid connection in the same year and Unit 2’s in 2024.60 Despite the concerns about financial sanctions and the conflict in Ukraine, Rosatom remains confident that the project will proceed as planned.61 However, the Bangladeshi public remains apprehensive about safety, security, and corruption issues.62 Nonetheless, the Bangladeshi government is committed to meeting its energy needs, with an estimated demand of 40,000 MW by 2030.63 While the Rooppur plant is a significant component of this plan, the government is exploring alternative sources, such as coal projects and renewables, to fill any potential gaps.64

Egypt Egypt’s nuclear program was launched in the mid-1950s with the establishment of the Egyptian Atomic Energy Commission.65 However, plans for ten reactors were indefinitely suspended after the Chernobyl disaster in 1986.66 On June 29, 2022, Russia’s state-owned company, Rosatom was granted permission to construct Egypt’s first nuclear power reactor.67 The government’s Sustainable Development Strategy

59

Karim et al. (2018). Sajid E. Fuel likely to be loaded in Rooppur nuke plant by Q4 2023. The Business Standard. https://www.tbsnews.net/bangladesh/energy/fuel-likely-be-loaded-rooppur-nuke-plantq4-2023-315991. Accessed 19 April 2023. 61 Billah M. Western sanctions cast a cloud over Russia-backed Bangladesh nuclear power plant. bdnews24.com. https://bdnews24.com/bangladesh/2022/03/02/western-sanctionscast-a-cloud-over-russia-backed-bangladesh-nuclear-power-plant. Accessed 19 April 2023; Rahman MA. Fund crunch may hit Rooppur Nuclear Plant following Russia sanctions. The Financial Express. https://www.tbsnews.net/bangladesh/energy/fuel-likely-be-loadedrooppur-nuke-plant-q4-2023-315991. Accessed 19 April 2023. 62 See Hosan et al. (2022), Alfee and Islam (2021), Karim et al. (2018). 63 Chowdhury KR. Questions over Russia-funded nuclear power plant in Bangladesh. The Third Pole. https://www.thethirdpole.net/en/energy/questions-over-rooppur-nuclear-power-plant-bangla desh/. Accessed 19 April 2023. 64 World Nuclear Industry Status Report (2022), pp. 208–209. 65 Ibid., 209. 66 Ibid. 67 Rosatom ASE. Construction Permit Issued for the El-Dabaa NPP Unit 1. Press Release. https://ase-ec.ru/en/for-journalists/news/2009/jun/construction-permit-issued-for-the-eldabaa-npp-unit-1/. Accessed 19 April 2023. 60

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aims to generate 9% of the country’s electricity from nuclear power by 2030, with plans to build additional reactors in various regions.68

Saudi Arabia In 2010, the King Abdullah City for Atomic and Renewable Energy (KA-CARE) was established by Royal Decree.69 In 2013, KA-CARE unveiled plans to construct a nuclear power plant, with the first reactor scheduled for construction in 2017 and completion in 2022, as part of a broader ten-year program aimed at building 18 GW of nuclear power capacity.70 While no progress has been made on this front, KA-CARE has signed a slew of agreements with such countries as Argentina, China, France, Hungary, Russia, and South Korea, with traditional nuclear supplier states competing fiercely for rare orders in the Middle East.71 Some of these deals focus on Small Modular Reactor (SMR) designs, notably China’s High Temperature Gas-Cooled Reactor and South Korea’s SMART designs.72 Saudi Arabia’s renewable energy capacity has grown to 443 MW in 2021, with solar power accounting for 439 MW.73 Nevertheless, renewable energy contributes a minimal 0.6% of the Kingdom’s total electricity generation capacity and 0.23% of the electricity produced in 2021, despite the country’s abundant sunshine and wind resources.74

Suspended or Canceled Programs Indonesia Indonesia ranks as the world’s sixteenth-largest economy.75 Notably, in 2021, it was one of only four nations in the Top 20 without an active nuclear fleet or plans to

68

Government of Egypt. Egypt Vision 2030. http://www.cairo.gov.eg/en/GovernorsCVs/sds_ egypt_vision_2030.pdf. Accessed 17 April 2023. 69 Royal Decree establishing King Abdullah City for Atomic and Renewable Energy 2010. https://www.climate-laws.org/geographies/saudi-arabia/policies/royal-decree-establishingking-abdullah-city-for-atomic-and-renewable-energy-2010. Accessed 19 April 2023. 70 Saudi Arabia to seek bids for its first nuclear reactor. https://www.thenationalnews.com/business/ saudi-arabia-to-seek-bids-for-its-first-nuclear-reactor-1.295763/. Accessed 19 April 2023. 71 World Nuclear Industry Status Report (2022), p. 219. 72 Ibid. 73 International Renewable Energy Agency. Renewable Capacity Statistics 2022. https://www. irena.org/-/media/Files/IRENA/Agency/Publication/2022/Apr/IRENA_RE_Capacity_Statistics_2 022.pdf. Accessed 19 April 2023. 74 World Nuclear Industry Status Report (2022), p. 219. 75 World Development Indicators Database. Gross Domestic Product 2021. World Bank. https://dat abankfiles.worldbank.org/public/ddpext_download/GDP.pdf. Accessed 19 April 2023.

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develop one shortly.76 In 1997, Indonesia adopted a nuclear energy law that outlined procedures for nuclear construction, operation, and decommissioning.77 In December 2015, however, the government abruptly halted all nuclear plans, including those for the long-term.78 Nevertheless, in July 2020, Indonesia’s Defense Ministry and Thorcon International, a US-based nuclear firm, inked an MoU to investigate the possibility of developing a thorium molten salt reactor (TMSR) for electricity generation or marine propulsion.79 Indonesia is believed to possess substantial thorium reserves, and scientists are looking at monazite, commonly found near the country’s tin ore, as an alternative source for extracting uranium and thorium. Indonesia held the top position as the world’s biggest tin producer in 2020 and remains one of the most significant producers in 2022.80

Jordan Jordan has been actively pursuing the development of nuclear energy for the past fifteen years, despite being one of the world’s most water-poor countries.81 This is surprising since nuclear energy is the most water-intensive method of generating electricity.82 In 2008, the Jordan Atomic Energy Commission (JAEC) was established to explore the possibility of constructing a nuclear power plant. Initially, they considered importing two 1000 MW nuclear reactors from Russia,83 but the agreement was canceled due to funding challenges.84 JAEC then explored the possibility of obtaining a High Temperature Reactor (HTR) from the CNNC, but Jordan has yet to begin construction of any nuclear reactor.85 Currently, Jordan only operates a small (5 MWth) research and training reactor imported from South Korea.86

76

World Nuclear Industry Status Report (2022), p. 222. Ibid. 78 Ibid. 79 Ibid. 80 Ibid. 81 Ibid., 223. 82 Ibid. 83 WNN. Jordan, Russia sign project development agreement. https://www.world-nuclear-news. org/Articles/Jordan,-Russia-sign-project-development-agreement. Accessed 19 April 2023. 84 Ghazal M. Funding issues behind scrapping nuclear deal with Russia. Jordan Times. https:// www.jordantimes.com/news/local/funding-issues-behind-scrapping-nuclear-deal-russia-%E2% 80%94-jaec. Accessed 19 April 2023. 85 Ghazal M. Jordan, China in “serious talks” to build gas-cooled $1b reactor. Jordan Times. https:// www.jordantimes.com/news/local/jordan-china-serious-talks%E2%80%99-build-gas-cooled-1breactor. Accessed 19 April 2023. 86 WNN. Jordan research reactor complete. https://www.world-nuclear-news.org/Articles/Jordanresearch-reactor-complete. Accessed 19 April 2023. 77

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Kazakhstan Kazakhstan once boasted the BN350 fast breeder reactor in Aktau from 1972 to 1998, which made it one of the few countries in the world to abandon commercial nuclear power.87 However, Kazakhstan has significant uranium reserves and is the world’s largest producer of this resource.88 The country has been in discussions with various reactor suppliers and nations, including Russia, about the potential construction of a nuclear power plant in Ulken, Almaty Province.89 Although President Putin initially suggested that Russia assist in this endeavor, Deputy Kazakh Energy Minister Magzum Mirzagaliev later revealed that no definite decision had been made regarding the construction of a nuclear power plant.90 While the government’s Kazakhstan Nuclear Power Plants (KNPP) initially planned to build a mid-sized power reactor, alternative possibilities are now being considered. In December 2021, KNPP signed a Memorandum of Understanding (MoU) with NuScale to explore the potential deployment of Small Modular Reactors (SMRs) in Kazakhstan,91 followed by another MoU with Korea Hydro and Nuclear Power (KHNP) in June 2022.92 These companies had already submitted proposals to Kazakhstan in 2019, and the government was evaluating six suppliers, including NuScale, GE Hitachi, CNNC, Rosatom, and EDF.93 In June 2022, however, NuScale and GE Hitachi were excluded from the process as their proposed technology had not yet been implemented anywhere.94

Thailand The Thai Cabinet established the Nuclear Power Program Development Office in June 2007, which is supervised by the Infrastructure Establishment Committee and the Nuclear Power Utility subcommittee and falls under the National Energy Policy Council.95 Its primary objective is to evaluate policy options and companies involved in nuclear power, such as the Electricity Generating Authority of Thailand (EGAT).96 In December 2015, Ratchaburi Electricity Generating Holding Public Co. decided to buy a 10% stake in China’s newbuild project, the twin Hualong-One 87

World Nuclear Industry Status Report (2022), p. 224. Ibid. 89 Ibid. 90 Pannier B. Putin Offers Russian Help To Build Kazakh Nuclear Plant. https://www.rferl.org/a/ kazakhstan-putin-offers-russian-nuclear-plant-help/29865177.html. Accessed 19 April 2023. 91 NuScale. NuScale Power Signs Memorandum of Understanding with KNPP to Explore SMR Deployment in Kazakhstan. Press Release. https://newsroom.nuscalepower.com/en/press-releases/ news-details/2021/NuScale-Power-Signs-Memorandum-of-Understanding-with-KNPP-to-Exp lore-SMR-Deployment-in-Kazakhstan/default.aspx. Accessed 19 April 2023. 92 World Nuclear Industry Status Report (2022), p. 225. 93 Ibid. 94 Ibid. 95 Ibid. 96 Ibid. 88

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units Fangchenggang-3 and -4, with the first unit slated to commence operations in 2022.97 A nuclear cooperation agreement was signed by China and Thailand in April 2017, during which China General Nuclear Power Group (CGN) expressed its readiness to offer Thailand the most innovative, cost-effective, and secure nuclear power technology, equipment, management expertise, and top-tier service.98 However, no progress has been made on nuclear power development in Thailand due to the US’s blacklisting of CGN.99

Uzbekistan Uzbekistan has recently expressed its desire to venture into nuclear power development, with the assistance of Russia.100 The VVER-1200 reactor design has been selected and would be financed through an engineering, procurement, and construction (EPC) agreement, which will be supported by a soft loan from Russia.101 The primary purpose of these reactors is to provide power for domestic consumption, with the possibility of exporting some to neighboring countries such as Afghanistan.102 Although there was a plan to license a site by September 2020,103 it did not materialize.

Vietnam Vietnam has been considered a prime candidate for nuclear power development for decades, owing to its burgeoning economy and energy demand.104 In 2010, Vietnam signed an intergovernmental agreement with Russia’s Atomstroyexport to construct the Ninh Thuan-1 nuclear power plant, which would use VVER-1200 reactors.105 The turnkey project was to be owned and operated by Vietnam Electricity (EVN).106 Additionally, another agreement was signed with Japanese firms to build a second 97

Ibid. WNN. China, Thailand agree to nuclear energy cooperation. https://www.world-nuclear-news. org/NP-China-Thailand-agree-to-nuclear-energy-cooperation-0504174.html. Accessed 19 April 2023. 99 World Nuclear Industry Status Report (2022), p. 225. 100 World Nuclear Industry Status Report (2022), pp. 225–226. 101 Ibid. 102 NEI Magazine. Uzbekistan’s nuclear aspirations. Interview with Jurabek Mirzamakhmudov, Director of Uzatom. https://www.neimagazine.com/features/featureuzbekistans-nuclear-aspira tions-7145738/. Accessed 19 April 2023. 103 WNN. Russia and Uzbekistan agree to start survey of new plant site. https://www.world-nuclearnews.org/Articles/Russia-and-Uzbekistan-agree-to-start-survey-of-new. Accessed 19 April 2023. 104 World Nuclear Industry Status Report (2022), p. 226. 105 Ibid. 106 Ibid. 98

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plant.107 In 2016, however, the Vietnamese government halted both projects with Russia and Japan due to slowing electricity demand growth, safety concerns, and rising construction costs.108 Despite this setback, the Ministry of Industry and Trade proposed a draft power plan in July 2020 that outlines the construction of 1 GW nuclear power plants by 2040 and 5 GW by 2045.109 The Minister of Industry and Trade, Nguyen Hong Dien, believes that nuclear power development is “an inevitable trend” and hinted that the Russian and Japanese projects were “suspended” rather than “canceled,” suggesting the possibility of a revival.110

Regional Nuclear Governance in Asia The quest for nuclear governance111 at the regional level in Asia aims to reinforce global norms and promote principles and objectives through modest institutional frameworks and networks. However, limited resources, funding, human capital, and political attention at the highest levels have prevented these regional supplements from achieving their full potential in practical ways, such as enhancing nuclear safety and security, implementing confidence-building measures, and initiating inspections, peer reviews, or information exchanges.112 Regional nuclear governance in Asia involves multiple forums and organizations (in addition to the IAEA) that aim to promote nuclear safety, security, and non-proliferation in the region. These forums work for the development and use of nuclear energy in the region consistent with international standards without a threat to regional security and stability. Among them, the Forum for Nuclear Cooperation in Asia (FNCA) is a noteworthy nuclear governance initiative founded in 1999. As a Japan-led cooperation framework for peaceful use of nuclear technology in Asia, its membership is somewhat peculiar, including leading nuclear states with an interest in 107

WNN. Vietnam prepares for nuclear power. https://www.world-nuclear-news.org/Articles/Vie tnam-prepares-for-nuclear-power. Accessed 19 April 2023. 108 World Nuclear Industry Status Report (2022), p. 226. 109 Minh A. Vietnam mulls return to nuclear energy after 2035. https://e.vnexpress.net/news/bus iness/economy/vietnam-mulls-return-to-nuclear-energy-after-2035-4127854.html. Accessed 19 April 2023. 110 Myriam Boulianne (2022). 111 Nuclear governance refers to the set of rules, norms, institutions, and processes that guide and regulate the development, deployment, and use of nuclear technology and weapons. It encompasses various aspects such as nuclear safety, security, non-proliferation, disarmament, and peaceful uses of nuclear energy. The goal of nuclear governance is to ensure that nuclear technology and materials are used in a responsible and safe manner and to prevent the spread of nuclear weapons and related materials. Nuclear governance involves both national and international efforts, including the establishment of legal frameworks, institutions, and agreements to regulate and monitor nuclear activities, as well as cooperation among states and other actors to address common nuclear challenges and risks. 112 Caballero-Anthony and Trajano (2023).

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nuclear power, but not the ASEAN states, The FNCA focuses on cooperation in radiation safety and management, research reactors, nuclear safety, and nuclear infrastructure strengthening.113 The cooperation involves FNCA meetings and project activities within member states.114 During a meeting in 2017, member states of FNCA pledged to collaborate in eight sectors, namely radiation oncology, mutation breeding, radiation safety and management of radioactive waste, nuclear security and safeguards, research reactor application, biofertilizer, neutron accelerator application, and global climate change research.115 Another prominent initiative is the Asian Nuclear Safety Network (ANSN), established in 2002 to improve the safety of nuclear installations in Southeast Asia, the Pacific, and the Far East.116 The present member states of the ANSN are Bangladesh, China, Indonesia, Japan, Kazakhstan, Republic of Korea, Malaysia, the Philippines, Singapore, Thailand, and Vietnam. Furthermore, Australia, France, Germany, and the US are supporting countries of ANSN.117 Meanwhile, Pakistan is an associate country participating in activities that relate to the safety of nuclear power plants and/or the enhancement of regulatory frameworks.118 As a vehicle for delivering the IAEA’s Extrabudgetary Programme on the Safety of Nuclear Installations in Asian region, the ANSN pools, analyzes, and shares nuclear safety information and practical experience at the specialist level through topical groups.119 As the group’s lack of transparency is concerning, however, it could play a public role more as the only nuclear safety-oriented network in the broader Asia–Pacific.120 Expanding the ANSN beyond the Asia–Pacific region and connecting with other Asian and Middle Eastern countries can have several benefits as the expansion of the ANSN may promote cooperation and trust among countries in the region. For example, the Middle East has a unique set of challenges when it comes to nuclear safety, given the political instability in the region. By connecting with Middle Eastern countries, the ANSN can help to address these challenges and promote nuclear safety in the region.

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Findlay (2023), pp. 15–34. The member states are: Australia, Bangladesh, China, Indonesia, Japan, Kazakhstan, Republic of Korea, Malaysia, Mongolia, Philippines, Thailand, and Vietnam. See FNCA. https://www.fnca. mext.go.jp/english/#:~:text=FNCA%20is%20a%20Japan%2Dled,%2C%20Philippines%2C% 20Thailand%20and%20Vietnam. Accessed 19 April 2023. 115 Forum of Nuclear Cooperation in Asia 18th Coordinators’ Meeting. https://www.nnc.kz/en/ news/show/17. Accessed 19 April 2023. 116 IAEA. Asian Nuclear Safety Network (ANSN). https://www.iaea.org/services/networks/orp net/regional-networks/asian-nuclear-safety-network-ansn#:~:text=The%20current%20participat ing%20countries%20are,%2C%20Singapore%2C%20Thailand%20and%20Vietnam. Accessed 19 April 2023. 117 Ibid. 118 Ibid. 119 Findlay (2023), p. 25. 120 Ibid. 114

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The Asia–Pacific Economic Cooperation (APEC) is another regional community forum with a broad membership and agenda,121 but it has shown minimal interest in nuclear issues, aside from a 2012 declaration agreement to ensure the safe use of nuclear energy as a clean energy source.122 In contrast, the Association of Southeast Asian Nations (ASEAN) has paid more attention to nuclear matters.123 Although the ASEAN has established several nuclear-related networks, these structures can become complicated and bureaucratic, making it difficult to assess their effectiveness.124 Despite the challenges posed by complicated and bureaucratic structures of some nuclear-related networks in the Association, the ASEAN Network of Regulatory Bodies on Atomic Energy (ASEANTOM) stands out as a collaborative and effective initiative, established in 1995 to enhance nuclear safety and security in the region by developing a regional framework. ASEANTOM’s main objective is to promote cooperation and information sharing among nuclear regulatory bodies in the ASEAN region.125 This network allows for the sharing of best practices, experiences, and technical knowledge, as well as the development of common standards and guidelines for nuclear safety and security in the region.126 Despite its mandate to strengthen nuclear safety, security, and safeguards within the ASEAN Community, ASEANTOM is a network of regulators rather than a fully fledged intergovernmental body dealing with all aspects of nuclear energy governance.127 In addition, the ASEAN Regional Forum (ARF), established in 1993 to engage a wider group of Asia–Pacific states in regular consultations, has achieved modest results in the nuclear field due to several factors.128 The ARF’s membership is diverse, with countries at different stages of nuclear development and different national

121

The membership comprises Australia, Brunei, Canada, Chile, China, Hong Kong, China, Indonesia, Japan, Malaysia, Mexico, New Zealand, Papua New Guinea, Peru, the Philippines, Russia, Singapore, South Korea, Chinese Taipei, Thailand, United States, and Vietnam. 122 Findlay (2023), p. 22. 123 ASEAN’s member states are experiencing rapid economic growth and a corresponding increase in energy demand. Nuclear energy is seen as a potential solution to meeting this demand, particularly as many ASEAN countries are heavily reliant on fossil fuels. 124 However, ASEAN has established partnerships with other countries and organizations to promote the peaceful use of nuclear technology and to enhance nuclear safety and security. 125 ASEAN. Nuclear Safety, Security and Safeguards. https://asean.org/our-communities/aseanpolitical-security-community/peaceful-secure-and-stable-region/nuclear-safety-security-and-saf eguards/. Accessed 24 April 2023. 126 Ibid. 127 While ASEANTOM’s focus on nuclear safety and security is important, there are other important aspects of nuclear energy governance that fall outside its mandate, such as nuclear energy policy, trade, and technology transfer. Without a comprehensive approach to nuclear energy governance, there is a risk of fragmented and inconsistent policies, regulations, and practices within the ASEAN region, which could compromise the safety and security of nuclear facilities and materials, as well as hinder the development of nuclear energy for peaceful purposes. 128 The ARF is primarily a political and security forum, which focuses on confidence-building measures, preventive diplomacy, and conflict resolution, rather than nuclear energy governance. Nuclear issues are part of the ARF’s agenda, and the ARF’s mandate cover nuclear safeguards.

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interests and security concerns.129 The ARF is making a positive contribution by reiterating its commitment to preserving Southeast Asia as a Nuclear Weapon-free Zone.130 With a goal similar to ARF, Australia established the Asia–Pacific Safeguards Network (APSN) in 2009 to elevate the efficiency and efficacy of nuclear safeguards implementation in the region.131 The APSN is a selective network of governmentaffiliated organizations that conducts annual meetings, workshops, and seminars to cultivate nuclear governance.132 Its members include the Canadian Nuclear Safety Commission, the US National Nuclear Safety Administration, and the IAEA, which provide invaluable advice, assistance, and encouragement.133 Although North and Southeast Asian members are represented in the network, China, India, Pakistan, and Taiwan are notably absent.134 While forums like ANSN, ASEANTOM, ARF, and APSN conduct annual meetings and workshops to elevate the efficiency and efficacy of nuclear safeguards implementation in the region, others also focus on fostering, coordinating, and executing cooperative research, development, and training projects for peaceful nuclear science and technology applications in the region. One such initiative is the Regional Cooperative Agreement for Research, Development and Training Related to Nuclear Science and Technology for Asia and the Pacific (RCA). Established in 1972, RCA is an intergovernmental agreement that facilitates joint efforts among its participants to advance peaceful nuclear science and technology through collaborative research, development, and training projects.135 RCA comprises the IAEA members in the Asia–Pacific, including South Pacific island states and South Asia, with the exception of North Korea, Russia, and the US.136 RCA holds annual meetings of national representatives and has a regional office in South Korea, operating under the IAEA’s

129

The ARF is characterized by consensus-based decision-making and frank dialogue. It comprises 27 members: the 10 ASEAN member states (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam); 10 ASEAN Dialogue Partners (Australia, Canada, China, the European Union (EU), India, Japan, New Zealand, the Republic of Korea (ROK), Russia, and the United States); Bangladesh, the Democratic People’s Republic of Korea, Mongolia, Pakistan, Sri Lanka, Papua New Guinea, and Timor-Leste. 130 ASEAN Regional Forum Statement on reiterating commitment to preserve Southeast Asia as a Nuclear Weapon-free Zone. https://www.eeas.europa.eu/eeas/asean-regional-forum-statement-rei terating-commitment-preserve-southeast-asia-nuclear-weapon_en. Accessed 24 April 2023. 131 Asia–Pacific Regional Safeguards Network. https://inis.iaea.org/search/search.aspx?orig_q= RN:51010226. Accessed 24 April 2023. 132 Ibid. 133 Findlay (2023), p. 25. 134 Ibid. 135 IAEA. Regional Cooperative Agreement for Research, Development and Training Related to Nuclear Science and Technology for Asia and the Pacific (RCA). https://www.iaea.org/about/ partnerships/regional/cooperative-agreements/regional-cooperative-agreement-for-research-dev elopment-and-training-related-to-nuclear-science-and-technology-for-asia-and-the-pacific-rca. Accessed 26 April 2023. 136 Findlay (2023), p. 25.

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Technical Cooperation program.137 However, RCA strictly limits itself to technical matters and is unlikely to emerge as a vehicle for broader Asia–Pacific nuclear governance.138 An effective nuclear governance requires robust nuclear security measures in addition to the technology development. The Council for Security Cooperation in the Asia Pacific (CSCAP) has a significant role to play in this regard. The CSCAP is a nongovernmental (second track)139 process for dialogue that seeks to promote regional security and stability in the Asia–Pacific region.140 CSCAP is led by a steering committee chaired by a member from an ASEAN and non-ASEAN Member, and its secretariat is located in Malaysia at the Institute of Strategic and International Studies (ISIS).141 CSCAP’s activities encompass organizing regional and international meetings, establishing connections with institutions beyond the region, and making policy recommendations to intergovernmental bodies.142 Another notable non-governmental (second track) initiative is the Asia–Pacific Leadership Network for Nuclear Non-Proliferation and Disarmament (APLN), established in 2011.143 APLN comprises high-ranking individuals144 from across the region, who aim to support a nuclear weapon-free world. The group holds conferences and workshops, issues statements, and publishes research publications.145 Similarly, to educate, research, and provide technical services to support nuclear energy safety, security and safeguards (3S) in the Middle East, the Gulf Cooperation Council (GCC) established the Gulf Nuclear Energy Infrastructure Institute (GNEII) in 2010 to support the development of nuclear energy infrastructure in the GCC countries.146 GNEII provides training and education programs, technical assistance, and advisory services related to nuclear energy infrastructure development.147 In addition to these initiatives, there are national nuclear centers of excellence that have regional governance implications. National centers of excellence on nuclear 137

Ibid. Ibid. 139 In the context of the nuclear industry, “non-governmental” or “second track” generally refers to initiatives or efforts undertaken by non-governmental organizations (NGOs) or other entities outside of official government channels. This can include advocacy, research, and education on nuclearrelated issues, as well as efforts to promote transparency and accountability in the industry. Nongovernmental organizations can also play a role in facilitating dialogue and cooperation between different stakeholders in the nuclear industry, including governments, industry actors, and the public. 140 CSCAP is a non-governmental (second track) process for dialogue on security issues in the Asia Pacific. http://www.cscap.org. Accessed 26 April 2023. 141 Findlay (2023), p. 26. 142 Ibid. 143 APLN. https://www.apln.network/about-us/apln. Accessed 26 April 2023. 144 It is a network of former- and currently-serving political, diplomatic, and military leaders, as well as senior government officials, scholars, and opinion leaders across the Asia–Pacific region. See APLN. https://www.apln.network/about-us/apln. Accessed 26 April 2023. 145 Ibid. 146 Williams et al. (2020). 147 Ibid. 138

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security are typically established by governments to provide education, training, research, and technical support in areas related to nuclear security. These centers are designed to enhance the capabilities of national governments and international organizations to prevent, detect, and respond to nuclear security threats, including the illicit trafficking of nuclear materials, the theft of nuclear weapons or radioactive materials, and the sabotage of nuclear facilities.148 Until now, these centers have been initiated by Japan, China, India, Indonesia, Pakistan, and South Korea. The centers also cover other nuclear governance issues and cooperate with each other to offer training, advice, and support joint projects to other states in the region.149 In this course, Asia is at the forefront globally with these centers and could provide models and lessons learned to other regions and globally.150

Nuclear Safety, Security, Safeguard, and Liability in Asia The Fukushima nuclear disaster significantly improved nuclear safety practices. Prior to the incident, there was a prevailing belief among the governments, nuclear operators, and the public that a nuclear crisis like Fukushima was not probable.151 Consequently, there was a lack of emphasis on essential safety measures, such as proper risk assessment, procedures for containing collateral damage, and appropriate evacuation planning.152 The disaster, however, completely altered the nuclear emergency preparedness paradigm from a reactive stance, anchored on the industry’s safety myth, to a proactive approach, anticipating all potential and unforeseen hazards to nuclear facilities. In response to the Fukushima NPP disaster, the IAEA established a Nuclear Safety Action Team to oversee the implementation of the IAEA Action Plan on Nuclear Safety.153 The Action Plan affirmed that each member state and operating organization would assume the responsibility for ensuring the highest standards of nuclear safety and providing a timely and transparent response to nuclear emergencies.154 The IAEA has made significant strides in providing guidance, education, and support to states in improving their capacity to respond to nuclear disasters, as elaborately discussed in Chap. 3 of this book. Despite these efforts, there are still significant gaps in regional compliance with post-Chernobyl treaties, such as the 1986 Convention on Early Notification of a Nuclear Accident (CENNA), the 1986

148

Constantin et al. (2017). Findlay (2023), p 27. 150 Ibid. 151 Hollnagel and Fujita (2013). 152 Ibid. 153 IAEA Action Plan on Nuclear Safety. https://www.iaea.org/topics/nuclear-safety-action-plan. Accessed 27 April 2023. 154 Ibid. 149

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Convention on Assistance in the Case of a Nuclear Accident or Radiological Incident (CACNARE), the 1994 Convention on Nuclear Safety (CNS), and the 1997 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. The CNS, which is the most critical of these treaties, requires states to ensure nuclear safety and mandates regular reviews of their nuclear safety arrangements. Regrettably, it does not enforce compliance with the IAEA safety standards.155 Although the CNS requires the members to report their compliance during periodic review meetings, several Asian states have failed to do so.156 It is reassuring to know that, except for Iran and North Korea,157 all these parties currently operating nuclear power reactors in the Asia–Pacific region have joined all three nuclear safety conventions.158 Also, several states in the region that have contemplated acquiring nuclear power plants or host research reactors have not acceded to all relevant treaties relating to nuclear safety. For example, the Joint Convention has the lowest level of participation in the region. Meanwhile, scholars believe that the transparency is lacking regarding military nuclear facilities in China, India, North Korea, Pakistan, and Russia, which collectively hold 70% of the world’s nuclear materials.159 As a result, a comprehensive assessment of regional nuclear safety and security is not feasible. On the other hand, nuclear security is a matter of global concern, not limited to Asian states with nuclear weapons or power plants, as nearly all states use nuclear and radioactive materials for various civilian purposes. Radiological security is a significant security issue in Asia, given that radioactive materials are widely employed for peaceful purposes in the area, particularly in industrial facilities, health and medicine, soil and water management, pollution monitoring, and agricultural production. Without adequate regulatory oversight on the use and handling of radioactive materials, however, there is a possibility that they may be employed for criminal, terrorist, or unauthorized purposes by a malicious non-state actor, posing a danger to both national and human security. As Fig. 4.1 demonstrates, from 2013 to 2018, five instances of missing, illicit trafficking, or theft of radioactive materials were monitored in Southeast Asia, 11 cases in West Asia, 12 cases in South Asia, and 43 cases in Northeast Asia.160 Nuclear governance must confront the alarming possibility of terrorists acquiring nuclear or radiological material to wreak unimaginable destruction. Although nuclear 155

Findlay (2023), p. 19. Ibid. 157 Although North Korea does not have any operational nuclear power plant, the country has its own nuclear reactor, the 5 MWe (megawatt electric) Yongbyon Nuclear Scientific Research Center. The reactor was initially used for research purposes, but in the 1990s, North Korea began to use the facility to produce plutonium for its nuclear weapons program. 158 Findlay (2023), p. 19. 159 Ibid. 160 Nuclear Threat Initiative. The CNS Global Incidents and Trafficking Database (2020). https:// www.nti.org/analysis/articles/cns-global-incidents-and-trafficking-database-archived-reports-andgraphics/. Accessed 27 April 2023. See also Trajano and Caballero-Anthony (2020). 156

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Fig. 4.1 Number of monitored cases of missing, illicit trafficking, or theft of radioactive materials in Asia from 2013 to 2018. Source Nuclear Threat Initiative, The CNS Global Incidents and Trafficking Database (2020)161

security and safety are perpetually evolving, many countries fail to really recognize. Weak links in the system, including cyber-security threats, expose critical infrastructure such as nuclear power plants and storage facilities to potentially catastrophic effects. The Nuclear Threat Initiative (NTI), a US-based non-profit organization that strives to prevent the weapons of mass destruction (WMDs) attacks and accidents, reports a rise in the global risk of WMD terrorism due to such factors as weak governance, political instability, and the presence of terrorist actors seeking to acquire nuclear materials. According to NTI, of the 22 states possessing weapons-usable material, Iran ranks only higher than North Korea in terms of security against theft.162 Iran’s performance in security and control measures, adherence to global governance

161

Nuclear Threat Initiative. The CNS Global Incidents and Trafficking Database (2020). https:// www.nti.org/analysis/articles/cns-global-incidents-and-trafficking-database/. Accessed 27 April 2023. 162 NTI Nuclear Security Index. Iran. https://www.ntiindex.org/country/iran/. Accessed 27 April 2023. See also Singh VJ (2019) Strengthening Nuclear Governance in the Middle East: US Perspectives (No. LLNL-CONF-795822). Lawrence Livermore National Lab.(LLNL), Livermore, CA (United States). https://www.osti.gov/servlets/purl/1605525. Accessed 27 April 2023.

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frameworks, and implementation of domestic and international regulations is inadequate.163 Iran also operates several nuclear facilities, and its lack of security infrastructure and proximity to conflicts in Syria, Iraq, and Afghanistan increases the risk of sabotage to these sites.164 Meanwhile, the UAE, Egypt, and Turkey possess nuclear materials that could be used for a crude Radiological Dispersal Device (RDD).165 The UAE ranks relatively high in material security, approaching the levels of Sweden, but, due to regional conflicts and terrorist threats, it has the lowest nuclear security score.166 Turkey has similar levels of security measures, governance, and regulation, but its risk environment score is the lowest of the three states for its proximity to conflicts in Syria and Iraq.167 Egypt ranks relatively low across the board, but improvements are expected as it moves toward constructing and operating its first nuclear power plant.168 Both Egypt and Turkey are in close proximity to regional conflicts, including the insurgency in the Sinai Peninsula and the conflict in Libya.169 Other than the Middle East, the Asia–Pacific region has become increasingly engaged in discussions and conferences focusing on nuclear security, physical protection, and radiological security, led by the IAEA.170 These events have become the most important and widely attended gatherings. Despite the progress made in global governance arrangements, legal arrangements and detailed implementation of nuclear security, policies remain patchy and limited.171 Moreover, the main treaty governing nuclear security, the 1980 Convention on the Physical Protection of Nuclear Material and its 2005 Amendment, has not been universally adopted in the region.172 Similarly, the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism, which aims to criminalize nuclear terrorism preparations and acts, has not been adopted by several significant Asian countries.173 Although radioactive source governance should be a high priority for the Asian states, the voluntary Code of Conduct on the Safety and Security of Radioactive Sources, Supplementary Guidance on the Import and Export of Radioactive Sources, Guidance on the Management of Disused Radioactive Sources, and the Code of 163

NTI Nuclear Security Index: Building a Framework for Assurance, Accountability, and Action. Fourth Edition (2018). https://media.nti.org/documents/NTI_2018_Index_FINAL.pdf. Accessed 27 April 2023. 164 Ibid. 165 Singh VJ (2019) Strengthening Nuclear Governance in the Middle East: US Perspectives (No. LLNL-CONF-795822). Lawrence Livermore National Lab.(LLNL), Livermore, CA (United States). https://www.osti.gov/servlets/purl/1605525. Accessed 27 April 2023. 166 Ibid. 167 Ibid. 168 Ibid. 169 Ibid. 170 Findlay (2023), p. 20. 171 Ibid. 172 For example, North Korea, Iran, Syria, Bhutan, Timor-Leste, Palestine—are not parties to the 1980 Convention on the Physical Protection of Nuclear Material and its 2005 amendment. 173 Findlay (2023), p. 21.

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Conduct on the Safety of Research Reactors have not been universally accepted in the region.174 Nonetheless, several non-treaty-based global arrangements, such as the Global Partnership against the Spread of Weapons and Materials of Mass Destruction, the Global Initiative to Combat Nuclear Terrorism, the Proliferation Security Initiative (PSI), and the Megaports Initiative of the US National Nuclear Security Administration, have substantially provided technical and other assistance to Asian states.175 These voluntary arrangements have added another layer of governance and fostered a collaborative mindset among states that may not otherwise have been inclined to collaborate. For example, the Megaports Initiative has led on collaboration in detecting illicit shipments of nuclear and other radioactive materials at major world ports in nuclear energy producers, such as Egypt, Malaysia, Singapore, South Korea, Taiwan, and Thailand.176 Similarly, the PSI aims to detect the illicit shipment of materials and equipment related to the production of WMDs, including nuclear, chemical, and biological weapons, and has significant participation from Asian states.177 Also, global non-governmental organizations, such as the World Institute for Nuclear Security (WINS) and the World Nuclear University, have provided guidance, training, and voluntary standards to enhance nuclear security in the Asia–Pacific region.178 The issue of nuclear safeguard varies across different regions in Asia, similar to nuclear security, with each region facing its unique challenges and circumstances. For example, the risk of Southeast Asian states acquiring nuclear weapons is almost negligible due to their strong commitment to subregional non-proliferation, as demonstrated by the 1995 Treaty on Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ) and universal adherence to the NPT.179 Conversely, Northeast Asia does not have an equivalent to the SEANWFZ. Instead, nuclear weapon states in this region are enhancing their nuclear weapon capabilities and delivery systems. Eventually, it complicates non-proliferation system in Northeast Asia.180 China’s escalating capabilities and military expansion have sparked concern, particularly due to its bold maritime assertions in the South China Sea.181 Although it signed 174

Ibid. Ibid. 176 Ibid. 177 Ibid. 178 Ibid. 179 All ASEAN states, except Brunei, have adopted comprehensive safeguards agreements with the IAEA and signed and ratified the Comprehensive Nuclear Test Ban Treaty. However, while many smaller states have signed a Small Quantities Protocol (SQP), which postpones most safeguards obligations until a certain threshold of nuclear material is reached, only Cambodia and Singapore have adopted an updated SQP that expands requirements, including periodic declarations and on-site inspections. Many ASEAN states have not fulfilled their legal obligations under IAEA safeguards agreements, particularly in establishing a proper State System of Accounting for and Control of Nuclear Materials (SSAC). 180 Findlay (2023), pp. 16–18. 181 Ibid., 17. 175

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the Comprehensive Nuclear Test Ban Treaty, China has yet to ratify it and remains uncommitted to any nuclear arms control accords.182 Meanwhile, North Korea, as a de facto nuclear state, has posed the most significant proliferation threat in the Asia–Pacific since it withdrew from the NPT in 2003 and is remaining unresponsive to the IAEA’s remote nuclear monitoring yet.183 The risk of North Korea’s transfer of nuclear materials or weapons to other nations or non-state actors is a persistent danger. While the Six-Party Talks aimed to address the issue, previous multilateral talks and the direct talks with North Korea by the Trump administration yielded little results, leaving uncertain the potential of President Biden’s administration to tackle the challenge.184 Meanwhile, in South Asia, the India-Pakistan nuclear arms race presents a pressing threat to the entire Asia region. A negotiated, verifiable, bilateral arms control agreement is urgently needed, including a bilateral nuclear test ban. Unfortunately, the obstacles to reaching such an agreement are daunting, with Asian countries holding little leverage.185 Furthermore, China’s nuclear modernization plans lead India to justify its own expansion plans more easily, and similarly India’s nuclear modernization plans lead Pakistan’s acceleration in fissile material and weapons production.186 Another concern in this region is that India, Pakistan, and Bhutan have not signed or ratified the Comprehensive Nuclear Test Ban Treaty. In the Middle East, nuclear facilities are not controlled by the IAEA, with great concerns. The Middle East is plagued by a security imbalance between Israel and its Arab neighbors, as well as between Iran and its Arab neighbors in the Gulf.187 The states have different legal obligations related to WMDs; some are joining international treaties, while others, rejecting them.188 These factors define the nuclear paradigm in the Middle East, as states pursue armaments to address perceived security concerns. To make progress, it is essential to acknowledge these factors and avoid artificial solutions that could lead to future conflicts. While Iran once showed interest in developing nuclear weapons in the past, there is no evidence that it has weaponized its program. Iran is still a non-nuclear NPT member. However, concerns about the nuclear proliferation in the Middle East are increasing, with fears that some Arab countries may develop nuclear weapons programs in response to Iranian actions or changes of Israel’s stance on nuclear program.189 Unfortunately, the international community seems to focus on Arab states that have already accepted all international obligations required by the NPT, rather than addressing Israel’s unsafeguarded program, which is the core of the problem. This approach may be ineffective

182

Ibid. Ibid. 184 Lee and Karim (2022). 185 Findlay (2023), p. 18. 186 Ibid. 187 Fahmy (2022). 188 Ibid. 189 Ibid. 183

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to prevent proliferation without addressing Israel’s actual acquisition, which has often impeded progress on nuclear peace.190 In sum, Asia lacks a multilateral disarmament forum or any platform that prioritizes arms control or disarmament. Interestingly, unlike Europe or Brazil and Argentina, some part of the Asia (Western Asia-Middle East, Northeast Asia, South Asia and Asia–Pacific) does not have its own nuclear safeguards arrangement, and most of the part of this region depends on the IAEA for the application of safeguards.191 Although bilateral safeguards regimes have been proposed for North and South Korea, India/Pakistan, and Iran/Israel, none have come to fruition. As for the nuclear liability issue, Asian countries’ liability regimes are based on international conventions, such as the Vienna Convention on Civil Liability for Nuclear Damage and the Convention on Supplementary Compensation for Nuclear Damage. These conventions provide a framework for both determining the liability of operators in the event of a nuclear incident and ensuring that victims’ reception of adequate compensation. However, the compliance and enforcement of these conventions vary across countries. Some countries have stronger nuclear liability regimes than others with more robust insurance requirements and higher limits of liability. As developing countries like India and China become more significant players in the nuclear industry, new and potentially lucrative markets would emerge. However, India caused a stir in the industry when it enacted the Civil Liability for Nuclear Damages Act 2010 (CLNDA), which alters the limits of supplier liability.192 This act primarily holds the operator liable for nuclear incidents, but introduces the concept of supplier liability beyond what is accepted in international nuclear liability law.193 Prominent supplier countries such as the US, Japan, France, and Russia have yet to embrace this new principle. Nevertheless, France and Russia stand to benefit economically from supplying India with nuclear material. In this regard, recent reports indicate that both countries may accept deploying reactors in India under the terms of the CLNDA.194 If such an agreement was finalized, it would be a pivotal moment in the history of international nuclear liability law, with the cost of purchasing insurance for the supplied component leading to an increase in the concerned component’s cost. The adoption of CLNDA as a feasible model for other countries, particularly those in Asia, remains uncertain. France and Russia, major supplier countries, could face challenges in objecting to the acceptance of India’s trendy supplier liability model in other nations. Academic and environmental groups suggest that Japan also consider adopting supplier liability, especially considering that taxpayers funded much of the compensation for the Fukushima disaster.195 Recently, a lawsuit was filed against 190

Ibid. Findlay (2023), p. 18. 192 Sutaria (2014). 193 Ibid. 194 See The Times of India. We are building same reactors for ourselves that we are sell. http://timesofindia.indiatimes.com/articleshow/18504284.cms?utm_source=contentofint erest&utm_medium=text&utm_campaign=cppst. Accessed 27 April 2023. 195 Abraham (2014). 191

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Toshiba, General Electric, and Hitachi, which supplied the reactors at the Fukushima nuclear power plant. In this lawsuit, 1400 plaintiffs are challenging the regulations that grant immunity to suppliers from nuclear liability.196 This lawsuit aims to raise awareness about supplier immunity from nuclear liability and the lack of adequate compensation structures provided by current international conventions and domestic laws. Currently, some of the Asian countries have no legal framework for the treaty obligations regarding transboundary liability and compensation, similar to the preChernobyl liability framework in Europe.197 Given their geographical proximity, this situation is not advisable, and attention must be paid to liability thresholds and the potential for transboundary impacts. One potential option for these countries is to consider legislation based on reciprocity, as seen in the US Price-Anderson Act and its Canadian counterpart, the Nuclear Liability Act.198 These acts provide for legal remedies for liability and compensation in accidents involving transboundary radiation. However, this mechanism is not currently under consideration by any South Asian or the ASEAN countries. The existing laws in India, Bangladesh, Indonesia, and Malaysia do not address the transboundary impact of nuclear accidents. In order to ensure the safe and sustainable expansion of nuclear energy in Asia, it is crucial to establish a comprehensive liability framework, modeled after the Paris Convention of 1960. Any discussion of nuclear expansion in this area must be accompanied by a thorough examination of this framework, which should go 196

Ibid. Several international conventions address the issue of transboundary liability and compensation in the context of nuclear accidents. These include the Convention on Early Notification of a Nuclear Accident, the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, the Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention, and the Convention on Supplementary Compensation for Nuclear Damage. Many Asian countries are parties to one or more of these conventions and have therefore agreed to cooperate in the event of a nuclear incident, including sharing information and providing assistance. The conventions also outline the process for determining liability and providing compensation to victims, including those in other countries who may have been affected by a transboundary release of radiation. However, some Asian countries have not ratified or acceded to all relevant international conventions, and there may be variations in the level of implementation and enforcement of these conventions across different countries. Therefore, there may be room for improvement in ensuring that all countries in Asia are fully prepared to handle transboundary liability and compensation in the event of a nuclear incident. 198 The Price-Anderson Act is a US federal law that establishes a system of liability and compensation for damages resulting from nuclear incidents. It provides a limit on the amount of liability that nuclear facility operators and suppliers would face in the event of an accident. The act requires the nuclear industry to maintain a certain level of insurance coverage, and if that coverage is exceeded, the federal government would provide additional compensation. The Canadian Nuclear Liability Act is a similar law that provides for a no-fault liability regime for nuclear incidents. The law sets out strict liability limits for nuclear operators and suppliers, and also establishes a compensation fund to cover damages beyond those limits. The concept of reciprocity in this context means that countries can establish similar liability regimes that provide for equivalent levels of compensation and limits on liability for nuclear incidents. In this way, if a nuclear accident were to occur in one country and cause damage to another country, the affected country would be able to seek compensation under the same liability regime that is applicable in the country where the accident occurred. 197

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beyond liability and include critical aspects such as siting, regional risk mapping, and potential risk scenarios. Furthermore, the unique circumstance of foreign operators managing most aspects of nuclear power plants in another country must be considered.

Challenges of Nuclear Governance in Asia Asia’s nuclear governance is characterized by striking differences in the capabilities, objectives, requirements, risk assessments, and governance structures of its four subregions. Northeast Asia is home to some of the world’s largest users of nuclear energy and several governments possessing nuclear weapons. Many states in the region have highly developed nuclear fuel cycles. Japan is the only country to have experienced a nuclear attack and one of the deadliest nuclear disasters in human history. Consequently, they are constantly aware of the potential for nuclear accidents, nuclear terrorism, and the stability of nuclear deterrence. Nevertheless, North Asian countries have heightened concerns about the threats posed by North Korea to stability, deterrence, and nuclear safety and security.199 The proximity of Russian and the US nuclear capabilities to Northeast Asia has a greater impact on nuclear governance discussions in this region.200 Compared to other subregions in Asia, Northeast Asia is generally characterized by larger, more prosperous that are better positioned to strengthen their own national nuclear governance structures without external assistance, with North Korea being a notable exception.201 On the other hand, Southeast Asian countries prioritize non-power applications of nuclear energy, such as using radionuclides for research, agriculture, and medical purposes. While some countries possess research reactors and consider building larger nuclear power plants, no concrete plans have been made. Primary concerns include the use and transportation of nuclear fuel, nuclear waste transit, and potential reactor accidents with transboundary impacts. Southeast Asian countries are generally receptive to outside assistance, even from neighboring countries. Asia exemplifies how subregions can have different perspectives on nuclear governance.202 Singapore, a major international hub, places a higher priority than its neighbors on preventing illegal nuclear material smuggling through its port.203 It actively seeks partnerships, such as the Megaports Initiative and the PSI.204 199

Findlay (2023), p. 27. Ibid. 201 Ibid. 202 Ibid., 28. 203 Ibid. 204 The Megaports Initiative and Proliferation Security Initiative are both international security programs aimed at preventing the proliferation of weapons of mass destruction (WMDs) and their components. The Megaports Initiative is a US government program that focuses on securing international maritime shipping by detecting and preventing the illicit smuggling of WMDs and other 200

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Conversely, nuclear governance issues in South Asia are mainly driven by two factors: the ongoing India-Pakistan nuclear standoff and weapons race, and the rapid expansion of nuclear energy generation in countries like Bangladesh, India and Pakistan. Both have deep-seated concerns about foreign interference in nuclear affairs, which have hindered their participation in Asia-based nuclear organizations. Their historical nuclear baggage has also impeded the involvement in collaboration, and their lack of interest in some cases has exacerbated the current situation. Unfortunately, their participation in the IAEA has not always produced favorable outcomes.205 In the Middle East, the integration of politics into nuclear energy development presents a complex challenge. Achieving political acceptance for the advancement and expansion of nuclear energy both within and across national borders will require a joint effort to prioritize safety, security, and non-proliferation. However, this goal demands a significant degree of self-restraint and collaboration, which are currently lacking in the Middle East. Promoting nuclear non-proliferation in the Middle East is a complex question, which has the potential to reduce tension and conflict in the region. A critical step toward achieving a WMD-free zone in the Middle East would be for Israel and Iran to commit to a permanent cessation of nuclear proliferation, even though this objective remains distant.206 Meanwhile, those governments in the area can implement various measures to encourage collaboration and transparency and to reduce the likelihood of misunderstandings regarding each other’s nuclear intentions. Absent a comprehensive nuclear governance organization akin to the European Atomic Energy Community (Euratom), it is difficult to establish a WMD-free zone not only in the Middle East, but also across all of Asia. The diverse range of nuclear challenges in the region calls for a complex array of organizations and systems that reflect the varying demands and risks. However, the multitude of organizations discussed in Sect. 4.3 of this chapter often have different memberships or mandates that may conflict with one another. Despite the lack of a comprehensive nuclear governance in Asia, various initiatives have aimed to develop soft governance approaches, such as organizing meetings, conferences, and workshops. While a significant amount of training appears to be taking place across Asia, however, little effort has been made to establish training standards or to evaluate the effectiveness of these initiatives. To dangerous materials through the use of advanced radiation detection technology. The program works with foreign governments to install these detection systems at key ports around the world to screen containers for nuclear and other radioactive materials. The Proliferation Security Initiative (PSI) is a global initiative launched in 2003 to prevent the proliferation of WMDs and their components by intercepting and seizing illicit shipments of these materials at sea, in the air, and on land. PSI is a voluntary partnership between countries that share a common commitment to stopping the spread of WMDs. It aims to build a global network of states that are willing and able to take cooperative action to interdict and confiscate WMD-related materials. Both initiatives are important components of the global effort to prevent the proliferation of WMDs, and they represent significant steps toward improving international security and preventing terrorist attacks. 205 Findlay (2023), p. 28. 206 Malin (2017).

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date, no comprehensive assessment of the practical impact of regional programs on nuclear safety, security, safeguards, and liability has been publicly disclosed.

Conclusion To sum up, while many Asian states operating nuclear power reactors are parties to major nuclear safety conventions, some states contemplating acquiring nuclear power plants or hosting research reactors have not acceded to all relevant treaties relating to nuclear safety. In this regard, transparency is lacking regarding military nuclear facilities in some countries. The issue of nuclear safeguards and security varies across different regions in Asia. Each faces its unique challenges and circumstances, from China’s military expansion and North Korea’s proliferation threat to the India-Pakistan nuclear arms race and the Middle East’s security imbalance. Moreover, Asian countries have liability regimes based on international conventions, but some lack a legal framework for transboundary liability and compensation. Finally, as the nuclear governance landscape in Asia is highly varied, with each subregion displaying unique characteristics in their capabilities, objectives, requirements, risk assessments, and governance structures, yet there is no comprehensive nuclear governance organization in Asia. As a result, the Asian states need to prioritize safety, security, and safeguards for non-proliferation, develop effective governance approaches, and evaluate their effectiveness.

References Abraham M (2014) Nuclear liability: a key component of the public policy decision to deploy nuclear energy in Southeast Asia. https://www.amacad.org/publication/nuclear-liability-key-compon ent-public-policy-decision-deploy-nuclear-energy-southeast/section/9. Accessed 27 Apr 2023 Alfee SL, Islam MS (2021) Assessment of public perception towards the radioactive waste management of Bangladesh. Prog Nucl Energy 140:103916 Boulianne M (2022) Southeast Asia tempted by nuclear power. https://www.lemonde.fr/en/ economy/article/2022/06/25/southeast-asia-tempted-by-nuclear-power_5987975_19.html. Accessed 1 July 2023 Caballero-Anthony M, Trajano JC (2023) Introduction: nuclear governance in the Asia-Pacific. In: Caballero-Anthony M, Trajano JC (eds) Nuclear governance in the Asia-Pacific. Routledge, London, pp 1–14 Constantin A, Newman A, Isaacs T (2017) Nuclear security centers of excellence in Asia: opportunities for collaboration. Nuclear threat initiative. https://media.nti.org/documents/NTI_Cen ters_of_Excellence_in_Asia_Background_Paper_Aug2017.pdf. Accessed 26 Apr 2023 Fahmy N (2022) Nuclear non-proliferation and disarmament in the Middle East. J Peace Nucl Disarmament 5(1):101–113 Findlay T (2023) Asia-Pacific regional nuclear governance: Fragmented, patchy, yet fixable? In: Caballero-Anthony M, Trajano JC (eds) Nuclear governance in the Asia-Pacific. Routledge, London, pp 15–34

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Herald D (2014) End of the road for RAPS 1. https://www.deccanherald.com/content/429550/endroad-raps-1.html. Accessed 14 Apr 2023 Hollnagel E, Fujita Y (2013) The Fukushima disaster–systemic failures as the lack of resilience. Nucl Eng Technol 45(1):13–20 Hosan MI, Dewan MJ, Sahadath MH, Roy D, Roy D (2022) Assessment of public knowledge, perception, and acceptance of nuclear power in Bangladesh. Nucl Eng Technol 55(4):1410–1419 IAEA (2022) Nuclear power reactors in the world—2022 Edition. https://www-pub.iaea.org/ MTCD/Publications/PDF/RDS-2-42_web.pdf. Accessed 14 Apr 2023 Karim R et al (2018) Nuclear energy development in Bangladesh: a study of opportunities and challenges. Energies 11(7):1672 Lee EYJ, Karim R (2022) Denuclearization of the Korean Peninsula. In: The US-DPRK peace treaty: a commentary. Springer, Singapore, pp 53–72 Malin MB (2017) Nuclear energy in the Middle East? Regional security cooperation needed. https://www.belfercenter.org/publication/nuclear-energy-middle-east-regional-sec urity-cooperation-needed. Accessed 30 Apr 2023 Sutaria A (2014) Placing the Indian civil nuclear liability regime in context: the extent of supplier’s liability. J Risk Res 17(1):97–113 Trajano JC, Caballero-Anthony M (2020) The future of nuclear security in the Asia-Pacific: expanding the role of Southeast Asia. Int J Nucl Secur 6(2):8 Williams AD, Solodov AA, Mohagheghi AH, Beeley PA, Alameri S (2020) The Gulf nuclear energy infrastructure institute: a multidisciplinary educational approach for integrated nuclear energy safety, security, and safeguards in the Middle East. J Nucl Mater Manag 48(1):4–21 World Nuclear Industry Status Report (2022), p 100. http://shorturl.at/cjGPV. Accessed 14 Apr 2023

Chapter 5

Strenthening Nuclear Governance in Asia

Introduction In the event of COP26, the UN Secretary-General António Guterres uttered the words “consign coal to history,”1 to encourage the commitment toward renewable energy sources. The goal is to simply end investments in coal by transitioning to renewables and phasing out coal completely by 2040. While these commitments are encouraging, we have witnessed repeated failures to adhere to the primary goal of eliminating coalbased energy production. The undeniable truth is that renewable sources, especially wind and solar power, cannot replace fossil fuels in the near future. In this regard, nuclear energy is the only viable alternative for effective energy production compared to fossil fuels. The demand for energy is surging, and the proportion of total energy consumption of electricity are excessively high, especially in Asia.2 The eminence of interest in nuclear power should be revived as an aftermath of worldwide concerns on climate and the mounting anxieties on security and the price of fossil fuel supplies. As a matter of fact, the world needs new, efficient, and environmentally friendly methods to produce more energy for industrialized and developing countries. Nuclear energy has been recognized as one of the most significant power sources since its commercialization in the 1950s. Recent advancements in nuclear technology have made energy production more environmentally friendly and cost-effective compared to fossil fuels. Despite the associated political and economic risks, many Asian countries are embracing nuclear energy to keep up with rapid industrialization and urbanization. Given their heavy reliance on finite fossil fuels with negative 1

See Footnote 1. Asia has experienced rapid economic growth in recent years, which has led to an increase in industrialization, urbanization, and population growth. As a result, the demand for energy has increased significantly to power the growing industries, businesses, and households. Additionally, many countries in Asia are heavily dependent on fossil fuels, such as coal and oil, for their energy needs. These non-renewable resources are often cheaper and more readily available than alternative energy sources, such as wind or solar power.

2

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 R. Karim and E. Y. J. Lee, Navigating Nuclear Energy Lawmaking for Newcomers, International Law in Asia, https://doi.org/10.1007/978-981-99-5708-8_5

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environmental impacts, the integration of nuclear energy can diversify their energy sources and offer a more sustainable solution. Additionally, since nuclear energy is a low-carbon energy source, its adoption can help reduce carbon emissions and support efforts to combat climate change. While nuclear energy holds great promise for Asia’s future energy needs, it is important to acknowledge the significant governance challenges discussed in Chap. 4 of this book. In this chapter, we aim to address the previously highlighted challenges for the safe and responsible use of nuclear energy. In this chapter, we provided an outlook on strengthening nuclear governance in Asia and make nuclear energy a promising energy source for Asian countries through collaboration and cooperation.

Recommendations for Ensuring Nuclear Safety in Asia To enhance safety, security, safeguards, and liability (3S + L) aspects related to nuclear operations, it is essential to have cooperation between the International Atomic Energy Agency (IAEA) and regional networks. It is advisable to establish an international peer-reviewed mechanism that encompasses all nuclear-related 3S + L matters. Regional networks, such as the Asian Nuclear Safety Network (ANSN), have a vital role in promoting sustainable regional cooperation on nuclear safety across the Asian region. One of their essential functions is to facilitate the exchange and pooling of expertise, information, and practical experience related to nuclear activities. Moreover, they can support to establish a robust capacity building system within the region. With their vast experience, the Asian nuclear experienced countries like China, Japan, South Korea, and India can impart valuable knowledge and resources to new entrants, enabling them to adopt the best practices. This makes regional networks easily accessible and valuable resources for all stakeholders in the nuclear energy field. In addition, based on our analysis in Chap. 4, we have identified three crucial safety recommendations for new entrants in the Asian nuclear market. These recommendations will not only benefit the newcomers but also help the Asian region to address challenges related to nuclear governance. Firstly, to make responsible decisions regarding the use of nuclear power (NP) as an energy source and selection of new locations for NPPs in Asia, it is essential to include strategic environmental impact studies (SEIAs) and transboundary environmental impact assessments (TbEIAs) in the process.3 These assessments are vital tools in determining a suitable location for nuclear power plant and the waste storage, including the possibility of an Asian radioactive waste deposit. SEIAs provide a comprehensive analysis of the potential environmental impacts of a proposed nuclear project, including its potential impacts on human health, the environment, and natural

3

Baird (2012).

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resources.4 This helps to ensure that the project meets local and international environmental standards and regulations. Meanwhile, TbEIAs assess the potential transboundary effects of nuclear activities, including the potential impact on neighboring countries.5 This is particularly important in Asia, because countries are in close proximity and nuclear accidents can quickly spread across borders. TbEIAs help to identify and manage potential cross-border risks and promote international cooperation on nuclear safety. By using SEIAs and TbEIAs in the selection of a suitable location for nuclear waste storage, stakeholders can identify potential environmental risks and develop measures to mitigate them. This helps to ensure the safety and security of nuclear activities and protect human health and the environment. Secondly, it is crucial to achieve transparency in all aspects of nuclear safety to enhance public trust and ensure high levels of safety. This can be accomplished through timely and continuous sharing of factual information, including information on nuclear emergencies and their radiological consequences. Adopting an Asian Convention on Access to Environmental Information6 would be an opportunity for the nuclear sector to demonstrate its support for the public right to know about practices, processes, and safeguards. This would enable the sector to promote transparency and foster public confidence in the nuclear industry and align Asia’s new NPP developments with the Nuclear Safety Action Plan proposed by the IAEA. Thirdly, promoting nuclear education and public awareness about nuclear issues is important in the Asian countries with nuclear power plants or planning to embark with nuclear energy journey. The IAEA is actively addressing public acceptance of NPPs. Nevertheless, it is important to examine debates surrounding the future of nuclear power through a sociopolitical lens, which has unfortunately been neglected in the past. The concept of “social peripheralization,” as identified by Blowers and Leroy in a 1994 article published at Environmental Politics, highlights that certain communities are suitable for holding nuclear power plants or waste storage facilities due

4

See also Strategic Environmental Assessment for Nuclear Power Programmes: Guidelines. https://www.iaea.org/publications/12251/strategic-environmental-assessment-for-nuclear-powerprogrammes-guidelines. Accessed 13 April 2023. 5 An example of transboundary Environmental Impact Assessment can be found here: Guidelines for Transboundary Environmental Impact Assessment in the Lower Mekong River Basin (TbEIA). https://www.mrcmekong.org/resource/aqrsbk. Accessed 13 April 2023. 6 This Convention can be very similar to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (also known as the “Aarhus Convention”), but yet should have its own characteristics that address unique environmental challenges in Asia. When drafting such a Convention for Asia, other international treaties and agreements must also be taken into consideration, including the Rio Declaration on Environment and Development, the United Nations Framework Convention on Climate Change, and the Convention on Biological Diversity. These agreements provide a framework and guidance on the principles and norms related to environmental protection, sustainable development, and human rights. An alternative to the treaty can be to promote the Aarhus Convention among the Asian countries. It was signed by 18 Asian countries, including China, India, and Japan. To date, 15 countries have ratified the Convention, and it has entered into force in those countries. The Convention is also open for accession by other countries in the Asian region.

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to factors such as their remote location, economic marginalization, political powerlessness, cultural defensiveness, and environmental degradation.7 This phenomenon occurs due to limited access to information, including the absence of an independent press, social apathy toward nuclear power for competing priorities such as economic growth, and even deliberate misinformation campaigns designed to shape public opinion.8 To determine the future of nuclear power, it is crucial to examine how pro-nuclear attitudes become ingrained, causing communities to rely on the processes that marginalize them.9 This discussion should encompass the dynamics of the community, struggles at the regional, national, and subnational level, and the contestation of local power relations.10 To address this purpose, public education on nuclear energy is essential, to combat the “social peripheralization” of nuclear energy by providing accurate information and dispelling misconceptions about nuclear power. Then again, the public views on nuclear power are closely linked to their perceptions of how radioactive waste is being managed and disposed of safely. It is a complex issue to deal with public perceptions of the handling and safe disposal of radioactive waste is a complex issue that requires a multifaceted approach in the Asian context. One approach could involve implementing transparent and participatory decision-making processes that involve local communities and stakeholders in the siting and management of radioactive waste facilities. This could help to build trust and confidence in the safety of nuclear power and the management of its waste. Another approach involves increasing public education and campaigns about the safety and management of radioactive waste, including information about the regulatory frameworks and safety standards that govern nuclear activities. By dispelling myths and misinformation about nuclear power and its waste, and providing the public with accurate knowledge to make informed decisions about nuclear energy, nuclear newcomers can contribute to promoting a better understanding of this crucial energy source. In sum, promoting the use of SEIA and TbEIA in Asia is crucial for a comprehensive assessment of the costs and benefits of NPP development and the adoption of effective mitigation measures. Moreover, the ASEAN, GCC, and APEC should consider adopting a regional Convention on Access to Environmental Information to ensure transparency and public engagement. Another crucial aspect of enhancing community recognition is public education on nuclear power, which can raise awareness and understanding of nuclear safety and its significance. The willingness of governments and industry to address the aforementioned issues will play a significant role in shaping the future of NPPs in Asia. It is no longer acceptable for regulators

7

Blowers and Leroy (1994). Park and Sovacool (2018). 9 Ibid., 10 Ibid., 8

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and the industry to evade the political implications of NPP decisions. As acknowledged by The Economist, nuclear power will remain a matter of politics rather than economics, except for substantial technological advancements.11

Measures for Safeguarding Nuclear Security and Preventing Proliferation Throughout the Cold War, Asia did not play a major role in nuclear negotiations due to the intense ideological and geopolitical tensions between the US and the Soviet Union.12 However, the emergence of nuclear-armed states in Asia, including China, can be attributed to the Cold War. Consequently, the Asian nuclear landscape has been and continues to be influenced by the enduring legacy of superpower rivalry between the US and Russia. Today, the Asian nuclear order is characterized by significant asymmetry among the region’s nuclear powers, which has impacted on various domains of state power, including diplomacy and the economy.13 Scholars believe that nuclear politics in Asia is divided into two triangles.14 The first triangle includes the US, Russia, and China, while the second triangle consists of India, Pakistan, and China.15 Furthermore, a quadrilateral is formed by the US, China, North Korea, and South Korea.16 It is worth noting that these interactions involve not only nuclear-armed states, but also non-nuclear-armed states. The trajectory taken by China and the US will significantly shape the Asian nuclear order.17 For instance, if China chooses to enhance its nuclear arsenal in response to perceived advantages of the US in terms of ballistic missile defense and prompt global strike capabilities, this will impact the nuclear balance in South Asia. In response, India may seek to restore equilibrium by modernizing its own forces to counterbalance Chinese advancements. This situation has the potential to urge Pakistan to match India’s advancements, thereby intensifying the arms race.18 Consequently, this dynamic might lead to increasing financial support from Beijing to Islamabad, which, in turn, could heighten tensions between China and India.19 China’s backing of Pakistan serves to balance against India’s regional influence, further exacerbating the friction between the two nations.20 11

The Economist. The dream that failed. https://www.economist.com/special-report/2012/03/10/ the-dream-that-failed. Accessed 11 May 2023. 12 Alagappa (2008). 13 Clarke (2012). 14 Ibid. See also Krepon (2009). 15 See Footnote 16. 16 Ibid., 17 Ibid., 18 Ibid., 19 Scott (2008). 20 Ibid, 252–254.

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Hence, the Asian strategic environment is characterized by evolving power dynamics among its key countries, asymmetries in both nuclear and conventional capabilities among major powers, and a complex web of interconnected strategic interactions. In this context, the relative shifts in the numbers and capabilities of nuclear arsenals among Asian nations assume greater significance. For instance, China’s pursuit of modernizing its nuclear force stems from years of deliberate efforts to replicate the nuclear capabilities of other nuclear weapon states (NWSs).21 Nevertheless, China’s decision to modernize its nuclear force is also driven by multiple factors, such as the need to maintain a credible deterrence capability, ensure national security, safeguard strategic interests, and respond to regional dynamics and the imperative of maintaining a balance of power. Notwithstanding the apparent stabilization of the India-Pakistan nuclear relationship in the past decade, concerns also arise regarding the emergence of a strategic rivalry between China and India. With longstanding territorial disputes, disparities in conventional and nuclear capabilities, and China’s close military and nuclear alliance with Pakistan, the potential for strategic competition and/or tensions between China and India remains substantial. The strategic competition between China and India may lead to a race for nuclear modernization and expansion of their respective arsenals. This arms race can undermine efforts to promote disarmament, non-proliferation, and arms control measures in Asia. Meanwhile, North Korea’s nuclearization poses several threats to nuclear governance in Asia.22 The US shares partial responsibility for the North Korean situation considering the historical context of geopolitical tensions and conflicts.23 The adversarial relationship between the US and North Korea, combined with the failure of diplomatic efforts and security guarantees, has contributed to North Korea’s pursuit of nuclear weapons as a means of deterrence and regime survival.24 The NonProliferation Treaty (NPT) and its dual nature, which allows for peaceful nuclear energy development while aiming to prevent the spread of nuclear weapons, have also played a role in the North Korean situation.25 Moreover, Israel and Iran pose significant challenges to nuclear governance in Asia. Both countries are key players in the broader Middle East region, which has implications for regional dynamics and security in Asia. Israel’s undeclared nuclear status and Iran’s nuclear program have raised concerns about its intentions, contribute to regional tensions and instability. Similar to the situation in North Korean, the US carries some degree of responsibility for the Israel and Iran situation. The US has been a key ally of Israel supporting technological assistance, which indirectly influences the regional balance of power. Historically, the US-Iran relations, including geopolitical tensions and sanctions, have shaped Iran’s motivations and actions in relation to its nuclear program. The longstanding tensions between Israel and its 21

Lewis (2009). Lee and Karim (2022). 23 Ibid., 24 Ibid., 25 Ibid., 22

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neighbors, as well as the complex regional dynamics involving Iran, Saudi Arabia, and other Gulf states, contribute to a volatile environment where nuclear capabilities can exacerbate the security dilemma and fuel an arms race. Additionally, as the demand for nuclear energy increases, the political dynamics surrounding nuclear power in Asia are undergoing a transformation. Within a region characterized by evolving geopolitical factors, the potential resurgence of nuclear energy brings notable concerns about the proliferation of nuclear weapons. Three primary sources of apprehension in this context are frequently highlighted: (1) the effectiveness of domestic governance; (2) the compliance of non-nuclear weapon states (NNWSs) with the NPT; and (3) the gravity of the terrorist threat faced by countries considering the adoption of nuclear energy.26 Furthermore, another concern arises regarding the widespread emergence of “nuclear latency”27 in the region, as studies suggest that the expansion of civilian nuclear collaboration amplifies the peril associated with the proliferation of nuclear armaments.28 From this perspective, it is contended that the probability of proliferation increases as a result of civilian nuclear cooperation, primarily for two significant reasons. Firstly, all materials and technologies associated with the development of nuclear weapons have legitimate civilian uses.29 Secondly, civilian nuclear collaboration expands the recipient state’s knowledge base concerning nuclear matters.30 According to scholars, when security challenges and civilian nuclear cooperation come together, it forms a potent combination that encourages the development of nuclear capabilities.31 However, it is important to note that not every state participating in such cooperation will necessarily acquire nuclear weapons. In a region where there are significant differences in the military capabilities, including nuclear and conventional forces, along with a constant shifting of power among its influential nations, it is only natural to feel a sense of unease. Hence, although the current state of nuclear latency in Asia does not pose an immediate risk of proliferation, it has the potential to raise concerns in the future as geopolitical circumstances change. For example, if a country like Bangladesh successfully establishes its own nuclear energy program, a significant reevaluation of its security situation might prompt the pursuit of a weapons program. This implies that the spread of nuclear technology and materials could enable the acquisition of weapons, rather than automatically resulting in widespread proliferation. To effectively address the facilitating aspect of nuclear expansion in Asia, it is crucial to skillfully manage the complex nuclear fuel cycle technologies involving uranium conversion, uranium 26

Clarke (2012). “Nuclear latency” refers to the potential for a country or region to develop the capability to produce nuclear weapons in a covert or clandestine manner. It implies a situation where a state possesses the necessary knowledge, technology, and resources to build nuclear weapons but chooses to refrain from doing so, remaining in a state of latent nuclear capability. 28 Fuhrmann (2009). See also Kroenig (2009). 29 Fuhrmann (2009), p. 12. 30 Ibid., 31 Ibid., 15. 27

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enrichment, and reprocessing.32 Moreover, establishing dependable guarantees for the supply of nuclear fuel will play a pivotal role in minimizing such enabling factor.33 The nuclear situation in Asia is undoubtedly complex. In terms of the strategic environment, the region is marked by constant change and a delicate balance of power among its key players, along with variations in nuclear and conventional military strengths. These dynamics occur within the context of important regional alliances. Furthermore, any alterations in these crucial alliances, particularly the relationship between China and the US, can have profound impacts on other dynamics and relationships within the region.34 Meanwhille, it is evident that challenges continue to exist in Asia among the nuclear weapon and non-nuclear weapon states that are parties to the NPT regime. Also, the modest rise in Asia’s nuclear energy demand raises concerns about security and safety related to governance and compliance issues, as well as the dissemination of nuclear technology and materials. In a region where the strategic landscape is prone to significant political changes, these challenges become even more intricate. Hence, there is a dire need to strengthen nuclear governance in Asia. First, diplomatic efforts and dialogue must be pursued to find a peaceful resolution to the North Korean nuclear issue. A US-DPRK Peace Treaty has the potential to offer a solution to the North Korean nuclear issue for several reasons.35 The treaty can facilitate multilateral cooperation and encourage the implementation of confidence-building measures among nations.36 Through these collective efforts, a more peaceful and secure future for Northeast Asia can be envisioned. International cooperation, especially involving regional powers like China, South Korea, and Japan, is crucial in promoting denuclearization and stability.37 Secondly, the adoption, adherence, and effective enforcement of a WMD-free zone in the Middle East is necessary to effectively address regional proliferation concerns. Israel’s possible possession of nuclear weapons may have sparked various efforts toward proliferation. Different nations have sought nuclear capabilities for several reasons, but one prominent motive has been the desire to counterbalance Israel’s arsenal.38 This motivation led Egypt’s Gamal Nasser, Libya’s Muammar Gaddafi, and Syria’s Assad to pursue nuclear weapons during different periods.39 In the 1970s, Iraq’s leader Saddam Hussein also embarked on the nuclear path with Israel in mind, but in the following decade, his rivalry with Iran became the primary driving force.40 Similarly, Iran’s interest in nuclear weapons was influenced by its neighbor, with balancing Israel as a secondary consideration at most. Presently, Iranian leaders 32

Clarke (2012). Ibid., 34 Ibid., 35 See Footnote 24. 36 See Footnote 24. 37 Ibid., 38 Fitzpatrick (2023). 39 Ibid., 40 Ibid., 33

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extensively discuss Israel’s nuclear weapons, which play a significant role in Iran’s nuclear strategy, especially since Iraq no longer poses a strategic threat to the Islamic Republic after the US invasion in 2003.41 Hence, the adoption, adherence, and effective enforcement of a WMD-free zone in the Middle East is necessary to effectively address regional proliferation concerns. However, Israel’s skepticism arises when it witnesses four Middle Eastern countries—Iraq, Iran, Libya, and Syria—develop nuclear weapons programs despite having signed the NPT.42 This skepticism raises doubts about whether treaties can offer a viable alternative to the security that Israel perceives in its nuclear arsenal. Hence, it is necessary to establish diplomatic relations among Middle Eastern countries that can cultivate trust. If Israel persists in its current approach of employing military force against Iran and other neighboring Middle Eastern countries to impede their nuclear advancements, it should expect nothing but negative responses from those nations. Given the recent developments, it would be wise for Israel to prioritize the establishment of diplomatic channels and adopt a more comprehensive policy that emphasizes diplomatic measures rather than relying solely on military actions. Therefore, promoting multilateral initiatives, such as the creation of nuclear weapon-free zones or strengthening existing ones, can contribute to enhancing nuclear governance in Asia. These zones can establish legally binding commitments among states to forgo the acquisition, possession, or testing of nuclear weapons, providing a framework for regional disarmament and non-proliferation. Finally, enhancing non-proliferation measures and enforcement mechanisms is essential. Stricter monitoring, verification, and penalties for non-compliance can help deter states from pursuing nuclear weapons programs.43 Asia lacks a multilateral disarmament forum or any platform that prioritizes arms control or disarmament.44 Interestingly, unlike Europe or Brazil and Argentina, some parts of Asia (Western Asia-Middle East, Northeast Asia, South Asia, and Asia–Pacific) do not have its own nuclear safeguards arrangement, and most part of this region depends on the IAEA for the application of safeguards.

41

Ibid., Ibid., 43 In Asia, the IAEA must work closely with member states and non-member states to strengthen their nuclear safeguards systems, ensuring the peaceful use of nuclear energy and preventing the proliferation of nuclear weapons. By providing technical expertise, guidance, and assistance, the IAEA helps member states develop robust safeguards infrastructure, including secure nuclear facilities, effective control of nuclear materials, and accurate reporting. Furthermore, the IAEA assists Asian countries in strengthening their legal frameworks and national legislation to support nonproliferation efforts. However, promoting non-member states in Asia to join IAEA requires a regional effort. By promoting membership in the IAEA, the region can contribute to nuclear nonproliferation, enhance nuclear safety and security, and promote the peaceful use of nuclear energy in Asia. Hence, all the regional bodies in Asia should work together to promote the membership in the IAEA. 44 ASEAN is an exception as such. 42

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Strengthening Nuclear Third-Party Liability Regime As discussed earlier in this chapter, the dissemination of uranium enrichment, reprocessing technologies and facilities, poses a significant concern due to the increased accessibility of materials that could potentially be employed in the manufacturing of nuclear weapons. Nuclear weapon states and nuclear fuel supplier states have undertaken various measures to tackle this particular issue, including the implementation of export restrictions, the exploration of multilateral nuclear approaches (MNA)45 for managing nuclear fuel cycle facilities, the establishment of bilateral nuclear cooperation agreements, and the enforcement of international controls on nuclear material.46 Developing a stable framework for third-party liability is an essential element in the establishment of an effective MNA or any bilateral nuclear cooperation. However, there are significant discrepancies in the existing nuclear third-party liability regulations among Asian nations, with only a limited number of governments being parties to a comprehensive global nuclear third-party liability treaty. Therefore, it is crucial to establish a unified nuclear liability system under a universally recognized international nuclear liability convention. This ensures adequate compensation for transboundary damages that may occur as a result of an incident at the nuclear facility. One of the core principles underlying the nuclear third-party liability regime is the principle of sole accountability attributed to the operator of a nuclear facility.47 Moreover, as per the nuclear third-party liability laws of a state, the state in which the operator is based typically extends support to the operator to bridge the gap if the extent of nuclear damage caused by the responsible operator surpasses its financial security threshold. If a nuclear incident occurs at a specific site, neighboring states can experience transboundary damage, regardless of whether it is a nationally operated plant or part of a MNA. Hence, international treaties on nuclear third-party liability encompass six fundamental principles that aim to guarantee adequate compensation for such damages48 : 1. Strict liability of a nuclear operator; 2. Exclusive liability of an operator of a nuclear installation; 45

Multilateral nuclear approach (MNA) is a concept that promotes cooperation and collaboration among countries in the peaceful use of nuclear energy. MNA is based on the principle of multilateralism, where countries work together to achieve common goals in the nuclear field. It typically involves establishing multinational fuel cycle facilities, such as uranium enrichment or spent fuel reprocessing plants, which are operated and controlled jointly by multiple participating countries. These collaborative endeavors encompass a diverse range of activities, including procurement, administration, operation, and decision-making processes pertaining to MNA facilities. 46 See Tazaki (2014). 47 World Nuclear Association. Liability for Nuclear Damage. https://world-nuclear.org/inform ation-library/safety-and-security/safety-of-plants/liability-for-nuclear-damage.aspx. Accessed 25 May 2023. 48 Ibid.,

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3. Compensation without discrimination based on nationality, domicile, or residence; 4. Mandatory financial coverage of the operator’s liability; 5. Exclusive jurisdiction; and 6. Limitation of liability in amount and in time. This underscores why a considerable number of Western European nations involved in nuclear energy have collectively ratified the Convention on Third-Party Liability in the Field of Nuclear Energy. This Convention has undergone amendments through the Additional Protocol of January 28, 1964, and the Protocol of November 16, 1982, commonly referred to as the “Paris Convention.” In parallel, these nations have implemented nuclear third-party liability legislations that adhere to the provisions outlined in the Paris Convention. Likewise, irrespective of whether a nuclear facility in the Asian region operates on a domestic level or as part of an MNA, all states engaging in nuclear activities within the region bear the responsibility of becoming signatories to the same international nuclear third-party liability convention. Additionally, these states are required to establish national nuclear third-party liability laws that align with the regulations specified by this convention. When considering international nuclear third-party liability conventions applicable to Asian governments, two options are available. One option is for all Asian nations to participate in one of the existing international third-party liability conventions.49 The other involves the establishment of a new convention exclusively tailored to the needs of Asian states.50 The latter option presents a practical and workable solution for countries in the Asian region due to significant disparities in nuclear energy usage considerable variations in their current nuclear third-party liability regimes, and differences in political and economic systems. Achieving uniformity across such divergent regimes is anticipated to be a complex and time-consuming endeavor, thus making the development of a distinct convention a more feasible approach. Among the mentioned conventions in Chap. 3 (specifically 3.4.4), the Convention on Supplementary Compensation for Nuclear Damage (CSC) emerges as an exceptional choice for Asian states for several compelling reasons. This CSC extends its invitation to any state that is a party to either the Vienna Convention or the Paris Convention or declares its national law to be in accordance with the provisions of its Annex. Notably, the CSC incorporates a comprehensive two-tiered system of compensation for nuclear incidents (Article III). The second tier involves the international supplementary fund, to which all CSC member states contribute. The more countries with strong nuclear capabilities contribute, the more money the fund will have to support its objectives. It is noteworthy that the US, who possesses the largest nuclear reactor capacity worldwide, ratified the CSC in 2008, thereby bolstering the resource base for the second tier. Japan, the third-largest nuclear reactor capacity, has also joined the CSC, further fortifying the provisions of the fund. Canada, India, and UAE have 49 50

See Tazaki (2014). Ibid.,

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also ratified the CSC. The cooperative spirit within the second tier of the CSC aligns harmoniously with the fundamental principles of the MNA framework. The CSC encompasses a special provision that pertains to the obligation of installation states to ensure financial security for the first tier of compensation (Article III). Initially, an installation state is required to ensure the availability of 300 million SDRs51 or a higher amount. However, for a maximum period of ten years from the CSC’s opening for signature, the minimum financial security amount is set at 150 million SDRs in the event of a nuclear incident occurring within that timeframe. This reduction in the financial security requirement proves particularly advantageous for newcomers in the Asian region’s utilization of nuclear energy. Nevertheless, it is important to acknowledge that from a practical standpoint, meeting the CSC’s financial security requirement for an installation state, is currently feasible for only a few Asian countries.52 Russia, with its significant nuclear programs, needs to increase its financial security from 5 million US dollars to 300 SDRs, while China must first establish a consolidated nuclear third-party liability regime in accordance with the CSC.53 Many Asian states still need to develop their nuclear third-party liability regimes and enhance the degree of financial security limitations to participate in the convention. This harmonization allows for smoother international cooperation and facilitates the cross-border support for nuclear technologies.

Conclusion To enhance safety, security, safeguards, and liability related to nuclear operations in Asia, cooperation between the IAEA and regional networks is crucial. Establishing an international peer-reviewed mechanism that encompasses all nuclear-related 3S + L matters can further strengthen safety, security, and safeguard measures. The spread of nuclear technology and materials raises concerns about proliferation, emphasizing

51

SDR stands for Special Drawing Right. It is an international reserve asset created by the International Monetary Fund (IMF) to supplement the existing official reserves of member countries. The SDR serves as a unit of account and a means of exchange among IMF member countries and other designated entities. The value of the SDR is based on a basket of major international currencies, including the US dollar, euro, Chinese yuan, Japanese yen, and British pound sterling. The weights of these currencies in the SDR basket are determined by the IMF and are periodically reviewed to ensure they reflect the relative importance of each currency in the global economy. In the context of the nuclear liability, the financial security amounts mentioned (e.g., 300 million SDRs, 150 million SDRs, and 3 million SDRs) refer to the monetary values that installation states (countries hosting nuclear installations) are required to guarantee or provide as part of their obligations under the Convention on Supplementary Compensation for Nuclear Damage (CSC). These amounts serve as a financial safety net to ensure compensation for potential nuclear incidents and align with the provisions outlined in the Vienna Convention and subsequent amendments. 52 Tazaki (2014). 53 Ibid.,

References

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the importance of managing the nuclear fuel cycle and establishing reliable guarantees for the supply of nuclear fuel. Addressing the complex challenges in the Asian nuclear landscape requires a comprehensive and cooperative approach that promotes dialogue, trust-building, and adherence to international agreements. By effectively managing power dynamics, strengthening non-proliferation measures, and pursuing diplomatic resolutions, the region can work toward a more stable and secure future. Eventually, harmonizing nuclear liability regulations and establishing a unified international nuclear liability convention, such as the CSC, is essential for Asian states to ensure adequate compensation for transboundary damages and facilitate international cooperation in the field of nuclear technologies. This will contribute to the safe and responsible use of nuclear energy in the region.

References Alagappa M (2008) The long shadow: nuclear weapons and security in 21st century Asia. Stanford University Press, Stanford, p 37 Baird M (2012) Key issues in the development of nuclear energy in Asia. Nat Environ Law Rev 3:47–53 Blowers A, Leroy P (1994) Power, politics and environmental inequality: a theoretical and empirical analysis of the process of ‘peripheralisation.’ Environ Politics 3(2):197–228 Clarke M (2012) Nuclear non-proliferation trends in the Asia-Pacific: the dilemmas of regime stasis, strategic flux and market expansion. Aust J Int Aff 66(5):514–526 Fitzpatrick M (2023) How Israel’s nuclear monopoly affects proliferation in the Middle East. https://www.stimson.org/2023/how-israels-nuclear-monopoly-affects-proliferation-in-the-mid dle-east/. Accessed 19 May 2023 Fuhrmann M (2009) Spreading temptation: proliferation and peaceful nuclear cooperation agreements. Int Secur 34(1):741 Karim R, Muhammad-Sukki F (2022) Artificial intelligence (AI) in the nuclear power plants: who is liable when AI fails to perform. In: Taghizadeh-Hesary F, Zhang D (eds) The handbook of energy policy. Springer, Singapore, pp 587–607 Krepon M (2009) Better safe than sorry: the ironies of living with the bomb. Stanford, Stanford University Press, p 99 Kroenig M (2009) Importing the bomb: sensitive nuclear assistance and nuclear proliferation. J Conflict Resolut 53(2):16180 Lee EYJ, Karim R (2022) Denuclearization of the Korean Peninsula. In: The US-DPRK peace treaty: a Commentary. Springer Nature, Singapore, pp 53–72. https://doi.org/10.1007/978-98119-5426-9_3 Lewis J (2009) Chinese nuclear posture and force modernization. Nonproliferation Rev 16(2):197– 209 Park J, Sovacool BK (2018) The contested politics of the Asian atom: peripheralisation and nuclear power in South Korea and Japan. Environ Politics 27(4):686–711 Scott D (2008) Sino-Indian security predicaments for the twenty-first century. Asian Secur 4(3):244– 270 Tazaki M (2014) A nuclear third-party liability regime of a multilateral nuclear approaches framework in the Asian region. Sustainability 6(1):436–448

Chapter 6

Nuclear Law: Implementing a Comprehensive Legislation for Newcomers

Introduction The drafting of nuclear legislation is a delicate and complex process, requiring careful consideration of the structure and every level of details. Different countries may adopt varying approaches, from a unified, comprehensive law to separate laws for specific subjects on nuclear energy. For example, some countries have only one law comprehensively dealing with every aspect of nuclear energy, while others have specific laws for nuclear safety, security, liability, and safeguard, separated from each other and addressing only one specific realm of nuclear energy production.1 The historical context and practical considerations of the legislative process often differ from one country to another. For newcomers utilizing nuclear and radioactive materials and technology, however, a holistic approach that encompasses all relevant subjects is often recommended.2 The 20033 and 20104 IAEA Handbook on Nuclear Law deals with the legal hierarchy that exists in most states, consisting of three levels: constitutional instruments, statutory enactments by parliament or legislature, and regulations by expert governmental bodies. In addition to enacting laws for these three levels to safeguard a nuclear energy generation of a nuclear newcomer, it is also important to advance national legislation that aligns with the obligations under international instruments,

1

Most of the nuclear energy-producing countries have separate laws for different aspects of nuclear energy. For example, the United States has several laws that address different aspects of nuclear energy, such as the Atomic Energy Act, the Nuclear Waste Policy Act, the Price-Anderson Act (which addresses liability), and the Nuclear Non-proliferation Act (which addresses safeguards). Similarly, UK, Japan, and China have also separate laws for nuclear safety, security, liability, and safeguards. 2 Stoiber et al. (2010). 3 Stoiber et al. (2003). 4 See Footnote 2. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 R. Karim and E. Y. J. Lee, Navigating Nuclear Energy Lawmaking for Newcomers, International Law in Asia, https://doi.org/10.1007/978-981-99-5708-8_6

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such as conventions and treaties.5 There are two main approaches to achieving this alignment: the “transformation” approach and the “incorporation” approach.6 The transformation approach involves adopting specific national laws to implement the provisions of an international instrument. Meanwhile, the incorporation approach involves making the international instrument a part of the national legislative framework through constitutional or legislative provisions.7 Sometimes, both approaches are combined. Additionally, certain international instruments require the adoption of national legislation in order to be enforced.8 Legislative drafters must consider the approach used in their state when drafting a new national nuclear energy law. The question of what needs to be included in a national law versus what can be handled in regulations is complex considering factors such as national practice in legislative drafting, the level of nuclear development, and institutional arrangements.9 Some countries prefer to frame legislation in more general terms, leaving detailed technical and administrative matters to regulations, while others include more details in the legislation itself. Hence, the discussion of this chapter aims to strike a balance between different approaches and assigns general policy objectives, institutional roles and responsibilities, and technical and administrative rules to the relevant actors of a nuclear newcomer. This approach allows for efficient and timely adjustments to changes in circumstances, including technological developments or new directions in a national program for nuclear energy and ionizing radiation.

Key Organizations in Nuclear Regulatory Framework The main elements in a national nuclear energy regime are: the state and its citizens, the legislative body of the state (parliament), the executive body of the state (government), numerous governmental bodies, in particular the regulatory body, and the industry (organizations such as operators and suppliers). Figure 6.1 attempts to picturize the key organizations in the nuclear regulatory framework.

5

Lamm (2017). Mason (1992). 7 Ibid. 8 See Cook (2014). The author believes that the primary international treaties (relating to nuclear non-proliferation and denuclearization, nuclear security, nuclear safety, emergency preparedness and response and liability for nuclear damage) should be applicable to all civilian nuclear power reactors to safeguard the humans and the environment. 9 Veuchelen (2009). 6

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Fig. 6.1 Example of organizations in the nuclear regulatory framework

Legislature (Parliament) The legislature (parliament) is responsible for setting the legal and regulatory system that is required for safe nuclear energy production. The legislative body plays an essential role in policy-making for nuclear technology. Government and regulatory bodies require the parliament’s constant assistance to promote the implementation of the nuclear energy system effectively and to ensure public safety against the associated dangers. These tasks are not complementary but are considered as essential in the nuclear lawmaking process. This leads to cover nuclear energy-producing state’s commitments under the Convention on Nuclear Safety, which is “the state is responsible for nuclear installations.”

Government The government should carry out the functions and assume responsibilities for the state policies within the constitutional structure of the country. The government is obliged to develop and sustain the requirements appropriate for monitoring the execution of the nuclear energy program at all its phases (i.e., sites, design, operation, commissioning, service, and decommissioning) from the safety point of view. The establishment of an appropriate legal framework and the creation of a regulatory agency are a prime challenge for the government. The government must also regulate and supervise the governing body within the statutory and administrative system. This entails, inter alia, maintaining the regulatory body’s legal authority and providing sufficient human resources to support for its efficient functioning.

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Regulatory Body Throughout the IAEA Guidelines, the term “regulatory body” is used to describe an entity or group of authorities appointed by the government as having legislative authority to perform the regulatory process, including granting and authorizations, controlling energy production, radioactive substances, transport of nuclear materials, and establishing nuclear waste management system. It includes the competent national authority for regulating the safety of transporting radioactive material. The legal framework of the regulatory body depends on the general structure and customs of the government in a state. To any regulatory body, complete independence on decision-making and administrative determination is mandatory. The regulatory body cannot, therefore, endure interferences from other governmental agencies, particularly in safety concerns regarding nuclear energy production. The regulatory body further needs to support and enforce protection measures in safeguarding the human and the environment from radiation. It involves developing and enforcing the administrative system, safety evaluation, compliance approvals, inspection and enforcement, reviewing expert feedbacks, innovating technology, and creating public awareness.

Industry (Electrical Utilities, Operating Organizations, Manufacturers/Suppliers) The nuclear energy industry is a complex set of various organizations including the operators, the nuclear reactor designer and constructor, various suppliers, etc. Each sector is responsible for executing the nuclear energy program, which takes the responsibility to suggest means and techniques for reaching the goals of the project. Consequently, they should suggest appropriate technological solutions for developing a national nuclear energy structure. In doing so, however, the industry is responsible for implementing its ventures inside the legal and regulatory framework. It must also be accountable for complying the conditions imposed by the regulatory body for safety and security. The nuclear industry can consist of either public companies or state entities, or a community of private or commercial businesses, based on the state’s specific legal structure. In both cases, but particularly in the former, the statutory process will ensure that the regulatory authority is entirely separate from the industrial sector. It is clear that the operating organization plays an essential and core role, so that it assumes a considerable responsibility. This has been generally and globally accepted and is expressed in many primary IAEA publications.

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Legislative Process of Nuclear Law and Regulation Every nuclear energy-producing country is expected to establish a series of special legal guides to govern the actions of stakeholders engaging in fissionable substances and ionizing radiation. In nuclear legal and regulatory structure, the specific technical standards apply. In general, a comprehensive national nuclear energy legal and regulatory structure is supposed to include all the stakeholders of nuclear energy generation, including investors, operators, private organizations, academic, scientific, and governmental bodies.10 Before trying to define the specific features of nuclear law which differentiate it from other forms of law, it is appropriate to momentarily explain the fundamental reason why a state has to try its best enforcing such legislation. Nuclear energy laws aim to safeguard humans and the environment from radioactivity, because it is produced from fissionable material or ionizing radiation. To achieve the goal, it is especially necessary that the responsible authorities carefully review their current nuclear activities and the plans for potential nuclear energy development through appropriate implementations of laws, regulations, and rules. Nuclear law has five main objectives as follows: (a) (b) (c) (d) (e)

Commitment for nuclear usage only for peaceful purposes; Establishing a statutory basis for the creation of a regulatory body; Reducing unnecessary radiological risk; Establishing and enforcing nuclear safety standards; and Securing financial indemnification for nuclear damage.11

Every nuclear energy-producing nation must adopt certain laws, regulations, and rules to uphold the national commitment in the international platform for safe and peaceful utilization of nuclear technology. In a nutshell, the two levels of legal and regulatory structure of nuclear energy relating to safety, security, protection, liability, and ecological safeguard are: (a) Fundamental laws that are legally binding upon all stakeholders relating to the nuclear industry12 ; (b) Technological specifications (e.g., regulations, guidelines, recommendations, and regulations) that signify the appropriate applications and are based upon particular stakeholders or individuals.13 The fundamental nuclear laws tend to be brief in order to cover specific circumstances, especially circumstances that are not yet present or even not yet understood. It should define the general context of a collection of practices relating to nuclear technology. This clearly denotes the intense complexity of integrating every element of nuclear technology into the domestic regulatory and legal system. Such integration will end up with so long texts that most people may find incomprehensible. In 10

See Footnote 3. Ibid. 12 Ibid. 13 Ibid. 11

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addition, it may impede progress to civil nuclear energy industry as too many regulations require restrictions in the useful development of atomic science and technology and industrial management. Besides, the technical laws do not come precisely with general application in every sector of nuclear energy production. The technical laws can apply only to a particular facility or operation with some modifications imposed on its unique characteristics and risks. Hence, the laws would usually be drafted in such a way to encompass generally acceptable conditions for integrating a wide range of public interest. On the other hand, although black letter laws are important for nuclear safety and security in most situations, there are also various regulatory mechanisms available to ensure reliable and responsible nuclear energy advancement. Generally, regulations are implemented at a lower level. Ministries and other assigned government entities are competent to develop and enact regulations. The regulations in technological development are regarded as an efficient device because it can be easily amended, or a new regulation can be promulgated to keep pace with the development of new knowledge and feedback from experience. The creation of a nuclear regulatory regime brings forth two types of regulations: procedural and functional. Procedural regulations establish organized processes for licensing, while functional regulations develop technical standards and criteria for applicants to follow. These regulations can be categorized into three approaches. The first approach is “compliance-based” regulations, which require operators to meet predetermined criteria and specifications. This ensures uniformity across all facilities focusing on ensuring compliance for the safe generation of nuclear energy. Inspections and regulations under this approach primarily aim to verify adherence to the set standards. The second approach is “performance-based” regulations, where safety performance indicators are utilized to monitor safety trends. However, this approach is challengeable in the sense that the indicators can be manipulated, leading to efforts focused on improving the indicators rather than enhancing safety itself. Furthermore, finding reliable safety metrics becomes difficult. It is crucial for regulators to differentiate between positive and negative patterns of safety culture related to nuclear energy. The third approach is “process-based” regulation, which recognizes that the safe operation of nuclear facilities depends on effective organizational processes. This includes processes for operation, maintenance, modification, and improvement of the facility. The process-based approach emphasizes the development of internally compatible systems tailored to the facility’s context, community, and market philosophy. It allows flexibility while requiring careful consideration of process logic. Overall, these regulations and standards are of paramount importance as they are implemented within an integrated approach to national and international “safety culture.” These approaches ensure the adherence of the organizational structure in a nuclear energy-producing country to promote the safe and responsible generation of nuclear power.

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Fundamental Components: Title, Preamble, Objectives, Scope, Definitions National laws often begin with introductory sections that provide background information and context. These sections may include a preamble or explanation of the reasoning behind the law, as well as sections outlining the definitions of key terms used, scopes, and objectives. The format and content of these introductory sections vary greatly depending on the country and its laws. When drafting a national nuclear law, the initial step is to come up with an appropriate title for the law that accurately reflects its subject matter and purpose. The naming or titling of a legal instrument is primarily dictated by the legislative customs of the specific jurisdiction. The most crucial aspect of this process is that the title reflects the law’s subject matter, clearly and accurately conveying the content of the law and its intent.14 Furthermore, a comprehensive law should not be limited by a narrow title but rather encapsulate the broader scope of the law. There may be occasions where the choice of terminology is debated, such as whether to use “nuclear” or “atomic” in the title, which can be influenced by factors such as technical accuracy or historical use.15 Ultimately, it is a matter of national discretion. After determining the title, another crucial aspect to consider while drafting a national nuclear law is the preamble, statement of considerations, and principles of the law. Many national legal systems begin with a preamble outlining the underlying motivations and considerations that led to its adoption.16 Although the preamble may not be legally binding, it serves as a general explanation of the relevant circumstances and policies that should be considered for interpreting and applying the law.17 They can provide guidance when situations were not foreseen by the legislative drafters or where a literal interpretation of the law would lead to an absurd or unjust outcome.18 Like the title, the preamble should accurately reflect the basic content of the law. The preamble should be either comprehensive if the law is a unified law that covers a wide range of subjects relating to nuclear energy production (e.g., safety, security, safeguard, and liability), or more specific if the law focuses on one subject only.19 Much like a preamble, an “objectives” section at the beginning of a legislative enactment is intended to clearly state the main reasons for adopting the law and frame them as goals to be achieved. These provisions, like a preamble, usually do 14

See Orr (2000). Stoiber et al. (2010), p. 9. 16 Orgad (2010). See also Lee and Karim (2022). 17 Ibid, Lee and Karim (2022). 18 At the core of purposive statutory interpretation lies a crucial principle—judges must scrutinize challenging words or provisions in their full context, namely the intrinsic material of the statute. In doing so, judges have established principles that weigh the significance of preambles, among other factors. Furthermore, this principle enables courts to consult extrinsic materials, such as parliamentary history, official reports, and records of parliamentary proceedings, in order to accurately assess legislative intent. 19 Stoiber et al. (2010), p. 10. 15

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not have a specific binding effect but can serve as an aid to interpretation. In the nuclear field, objectives should include the aim of the law in protecting individuals, society, and the environment from the harmful effects of ionizing radiation, as well as ensuring nuclear security.20 Additionally, it is essential to include objectives related to the peaceful use of nuclear energy and ionizing radiation, including fulfilling a state’s commitments under relevant international agreements such as the NPT21 or equivalent commitments. Hence, like a preamble, objectives section should accurately reflect the subject matter of the particular law, whether it is comprehensive or focused on a specific topic. In addition to clear objectives, it is crucial to clearly define the scope of the law, covering the topics that are included and excluded. The scope provision, also known as the subject matter provision, establishes the boundaries of the law and helps to ensure that all relevant materials, technology, and activities are covered. For a comprehensive law, on the one hand, it is the best practice to draft the scope provision in general terms, rather than listing all subjects covered, to avoid any potential misinterpretation. On the other, for separate laws, it is essential to be as precise as possible to avoid confusion with other laws. Moreover, it is important to pay attention to definitions used in the law, as they are closely related to the scope provision and should align with the terminology used throughout the legislation.22 Some states have a separate “prohibition” article in the scope section that specifically lists prohibited activities, such as the development or acquisition of nuclear weapons or the import of nuclear waste not originating in the state. Once a title, preamble, objective and the scope are set, it is time for providing the definition of the terms used in the law. Defining the terms used in a law is also crucial in ensuring its understanding and applicability. In the nuclear field, it is the most efficient to adopt definitions from the IAEA publications that reflect international expert consensus. Definitions can be found in the IAEA glossaries on safety,23 safeguards,24 and radioactive waste management.25 However, some legislative drafters may face difficulties in using these definitions, due to the usage of technical language and/or discrepancies with national languages. It is important that the terminology used in national legislation is consistent with international instruments to which the state is a party, but caution must be taken in copying these definitions verbatim. Additionally, some definitions may not be clear or may categorize subjects in general terms, such as “activities” and “practices.” In these cases, it may be necessary to include separate or special definitions for clarity. Overall, the most important aspect of definitions in nuclear legislation is the clear connection between the definition and the legislative provision.

20

Ibid, p. 11. Treaty on the Non-Proliferation of Nuclear Weapons, INFCIRC/140, IAEA, Vienna (1970). 22 Stoiber et al. (2010), pp. 12–13. 23 International Atomic Energy Agency (2007). 24 International Atomic Energy Agency (2002). 25 International Atomic Energy Agency (2003). 21

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Nuclear Safety Nuclear safety laws are legal frameworks designed to regulate the use of nuclear energy and protect people and the environment from its harmful effects.26 These laws cover a wide range of areas, including the functions of a nuclear regulatory body, licensing and authorization, construction and operation of nuclear power plants, the handling and disposal of nuclear waste, the transportation of nuclear materials, and the use of nuclear technology for other purposes. Some key goals of nuclear safety laws, inter alia, are to ensure the safe and secure use of nuclear energy, to prevent accidents and releases of radioactive materials, and to regulate the transportation and usage of nuclear materials. To achieve these goals, nuclear safety laws should establish strict standards and provide for a system of monitoring, inspection, and enforcement to ensure that these standards are met and the public and the environment are protected.

Independent Regulatory Body A fundamental aspect of ensuring the safe and secure use of nuclear energy and radiation sources is the establishment of a governmental regulatory body that oversees the activities of those who use ionizing radiation and other related affairs.27 This regulatory body must possess a clear legal mandate, a high level of technical expertise, and sufficient resources to carry out its duties.28 While there is no one-size-fits-all model for such an authority, it should be designed to conduct all activities that may supervise and regulate risks of radiological harm. The regulatory body should be independent in nature, in order to protect itself against undue influence by other entities with conflicting interests.29 This may be achieved through institutional separation to ensure that the regulatory body can carry out its key functions without interference. The regulatory body must also comply with other relevant laws and regulations of the land. It should have further clear relationships with other governmental bodies that may play a supportive role in its work.30 26

Nuclear safety laws are regarded as the most important legal frameworks for nuclear energy production because they help protect public health and safety, prevent nuclear accidents, manage radioactive waste, and promote international cooperation and consistency in the safe use of nuclear energy. In the aftermath of the Fukushima disaster, a number of investigations were conducted to determine the causes of the accident. These investigations identified a range of factors that contributed to the disaster, including inadequate safety measures, poor emergency preparedness, and a lack of oversight by regulatory authorities. See Wang and Chen (2012). Therefore, it is crucial for any country new to nuclear energy to establish strong nuclear safety laws that effectively regulate the safe production of nuclear energy. 27 Karim et al. (2018). 28 Stoiber et al. (2010), pp. 25–45. 29 Jais and Hassan (2017). 30 Stoiber et al. (2003), pp. 25–32.

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Nevertheless, the financial and human resources of a regulatory body are crucial to carry out its responsibilities effectively. Having control over its own resources, through separate budget and staffing authority, plays a vital role in maintaining its independence. The funding for regulatory bodies can vary from state to state. While most states fund regulatory bodies through the national budget, some may also rely on fees from licensees, grants from other government bodies or fines for regulatory violations.31 It can be challenging to draft statutory provisions that guarantee adequate financial resources, as a regulatory body’s budget is subject to review through the national budget and legislative process.32 However, a requirement for adequate funding in legislation can provide a useful tool for regulatory bodies during budget negotiations.33 It is necessary for the laws and regulations governing a regulatory body to be as simple, clear, and concise as possible. This ensures consistency with national practices and prevents confusion or doubt about the scope of its functions. While some legal systems may require a detailed list of functions, it is important to avoid any potential inaccuracies. A more general legal provisions for regulatory bodies allow for flexibility and the ability to adapt to changes.34 Fundamental functions such as standard setting, authorization, inspection, and enforcement may require more specific laws and regulations to establish their conduct.35 Although regulatory bodies must have sufficient resources to carry out their duties, the expertise needed for a particular program/issue is sometimes not available within the organization. Hence, the regulatory body should have the authority to seek the aid of external experts.36 This is typically addressed by either creating a permanent body of external experts to review regulatory proposals, documents, or decisions on a regular basis or by hiring external experts as consultants for specific tasks or time periods. Care must be taken to ensure the independence and expertise of these outside advisers. Technical support organizations (TSOs) have emerged as specialized bodies to provide support to both regulators and users, but their roles and relationships should be closely examined to avoid any conflict of interests.37 The IAEA 2003 Handbook38 highlights that national legislation must embody several central regulatory functions, while the IAEA 2010 Handbook39 guided to include some of these functions in a comprehensive article/section in the law outlining the responsibilities of the regulatory body. In some cases, there are functions and 31

The funding of the primary nuclear regulatory body in the United States—Nuclear Regulatory Commission (NRC)—is majorly provided through fees paid by licensees that operate nuclear facilities, rather than from the national budget. 32 See Footnote 30. 33 Ibid. 34 Ibid. 35 Ibid. 36 Naseer and Ali (2021). 37 Ibid. See also Williams (2019). 38 See Footnote 30. 39 See Footnote 28.

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activities of a regulatory body that are so crucial to an effective regulatory system that they necessitate a more in-depth examination in separate sections of national law. Nevertheless, our suggestion is to have a separate code as a regulation outlining the detailed function of the regulatory body, rather than having a single law as such. The code may include the elaborated guidance on the processes of notification, authorization (or licensing), inspection, and enforcement, while national law should just briefly address them on point. To ensure compliance, the code must also provide private individuals and organizations that use radioactive materials with clear and concise information on the basic requirements and procedures. It is imperative that any individual intending to engage in practices or activities involving ionizing radiation must inform the regulatory body in a timely manner. In practice, the submission of an authorization request is considered equivalent to a notification.40 Notification serves as an essential mechanism and national nuclear law must emphasize the importance of notification for several reasons, including41 : • Advising the regulatory body of the intention to dispose of radioactive sources; • Reporting any modifications to practices or activities that may impact radiation protection; and • Promptly communicating any incidents or accidents that occur during the practice or activity. In general, the need for extensive detail in regard to authorization procedures and requirements is not necessary within the text of the law. These specifics can be more efficiently handled through regulations or implementing codes of conduct.42 Nevertheless, it is prudent to establish the fundamental legal framework for the most significant elements of the authorization process.43 It can never be denied that the inspections and verifications also play a vital role in maintaining an effective regulatory system, in addition to the licensing and authorization.44 The regulatory body must devise a well-planned and systematic inspection plan that considers the potential hazards involved in the activities being regulated. The regulatory body should have the flexibility to carry out both scheduled and unscheduled inspections and the ability to take immediate action, if necessary. By enshrining the right of the regulatory body to continuously oversee licensed activities, the safety and well-being of the public and the environment can be ensured.45 In order to conduct thorough inspections, the regulatory body should possess the authority to access any site or facility at any time. Reporting of inspection activities is a crucial aspect of the regulatory process, serving to evaluate compliance with regulations and license conditions, as well as enhance safety and security.46 40

See IAEA (2007). See Footnote 28. 42 Ibid. 43 Ibid. 44 Ibid. 45 See NEA (2016). 46 Ibid, 27. 41

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As outlined in the 200347 and 201048 IAEA Handbook, the functions of regulatory inspection and enforcement are interrelated and often enshrined in the same chapter or section of the law. In certain instances, enforcement action may have to be taken promptly by inspectors, especially in such cases that pose an imminent threat to the safety of individuals or cause significant harm to property or the environment. As such, inspectors should have the power to halt operations and require authorized persons (licensees) to take corrective measures to prevent injury or damage.49 Enforcement encompasses methods for identifying and addressing non-compliance with laws, regulations, and authorization (license) conditions. The goal of enforcement is to attain compliance with regulations and avoid future infractions. Deterrence is achieved through the use of various penalties, such as suspension of an authorization (license) until the violation is corrected, or civil or criminal fines for more serious acts of non-compliance.50 In some jurisdictions, the regulatory body is authorized to impose civil monetary fines, while in others it must refer the case to an administrative or judicial body.51 Some regulatory inspectors also have the authority to take enforcement action directly upon discovering a potential violation that poses a threat to people or the environment. This could include an order to suspend activities under an authorization (license) or prohibit unqualified persons from conducting activities involving ionizing radiation.52 However, it is always important to understand that revoking or suspending an authorization can significantly impact authorized individuals or entities by hindering their business operations and can be more severe than monetary fines. The legislative framework in any given state should also offer a means for individuals to challenge the decisions made by the regulatory body, should those decisions not align with the facts of a particular situation or misapply the law or regulations.53 This can typically be done through the state’s established appeals process, with the grounds for appeal outlined in the state’s general administrative laws or regulations issued by the regulatory body or other governing body. Furthermore, both the individual seeking authorization or facing enforcement and the regulatory body should have the opportunity to seek additional review of an appellate decision, typically through the judiciary.54 In sum, a well-structured functional duty for an independent regulatory body will help to boost the public confidence in the regulatory process.55 Then again, numerous scholars have concluded through empirical research that the public acceptance is 47

See Footnote 30. See Footnote 28. 49 Ibid. 50 Ibid. 51 Ibid, p. 41. 52 Ibid. 53 Ibid, p. 44. 54 Ibid. See also Convention on Nuclear Safety (1994); IAEA (2000); Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (1997). 55 Budnitz et al. (2018). 48

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dependent on their understanding of nuclear law structure and content.56 Hence, national law and specific code must provide a clear and comprehensive overview of the regulatory system.

Radiation Protection The safe handling of all forms of ionizing radiation is crucial in safeguarding both people and the environment. A comprehensive collection of regulatory standards and guidelines has been created by IAEA to provide a foundation for radiation protection practices.57 The extensive body of information contained in these standards and guidelines cannot be incorporated into national legislation in its entirety, serve as a basis for national regulatory bodies to adopt specific regulations or specific codes and guidelines. National legislation, however, should provide a clear outline of the basic elements of radiation protection. Firstly, incorporating fundamental principles of radiation protection, such as justification, optimization, and limitation, into national legislation serves as a reference for regulators and stakeholders, including the public, media, legislators, and other stakeholders.58 While the exact manner of codifying these principles into law varies by state, it is vital to recognize that their successful implementation depends on the actions and decisions of the regulatory body. Secondly, legislation should clearly identify the body responsible for regulating radiation protection activities.59 It is essential to provide clear guidelines on the role of the regulatory body and to resolve any overlapping responsibilities with other government agencies involved in ionizing radiation practices, such as departments or ministries of health. Thirdly, the legislation should list specific regulatory functions for radiation protection, such as establishing radiation protection requirements and limits, and identifying exemptions and clearances from regulation.60 Fourthly, legislation should outline basic radiation protection requirements for authorizations, with technical requirements to be further detailed in regulations adopted by the regulatory body.61 Nevertheless, the primary responsibility for ensuring radiation safety lies with the authorized individual, licensee, or operator.62 This includes fostering a safety culture, establishing an integrated management system, ensuring staff qualifications, and having access to qualified experts.63 The authorized individual must also verify

56

Ibid. See IAEA (1999a). Also, IAEA (2002c). 58 Stoiber et al. (2010), pp. 47–48. 59 Ibid. 60 Ibid. 61 Ibid. 62 Ibid. 63 Budnitz et al. (2018). 57

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safety by performing assessments, implementing a monitoring program, and maintaining records as specified by the regulatory body. In conjunction with these considerations, legislative drafters should also refer to international standards and guidelines presented by the IAEA. The IAEA has developed the Code of Conduct on the Safety and Security of Radioactive Sources as a comprehensive guide for states to formulate and harmonize policies, laws, and regulations pertaining to the safe and secure handling of radioactive sources.64 The code seeks to promote a culture of safety and security among all individuals and organizations involved in the management and regulation of radioactive sources. The code outlines 11 fundamental principles that countries must apply to ensure the protection of people and the environment, establish effective national legislative and regulatory systems, provide suitable facilities and services for radiation protection, safety, and security, and emphasize training and awareness-raising. The Code of Conduct on the Safety of Research Reactors, established in 2006, provides a regulatory framework governing the operation of nuclear facilities, which includes nuclear power and research reactors, fuel fabrication plants, enrichment and reprocessing facilities, and radioactive waste management installations.

Emergency Preparedness and Response Handling nuclear and radiological emergencies is a complex and challenging task that requires collaboration from multiple levels of government, including the national, regional, and local.65 In the event of incidents with cross-border consequences, international efforts may be necessary. Regulatory bodies play a critical role in responding to accidents or incidents involving radioactive materials, but they must do so within the overall national framework for emergency management.66 It is vital that provisions in nuclear laws addressing emergency preparedness and response are drafted in alignment with other laws and arrangements for dealing with emergencies of any kind, including provisions to handle malicious acts such as nuclear terrorism. The preparation and implementation of emergency response plans by nuclear material and radiation source users are crucial. In this regard, the regulatory body must review and approve these plans. The regulatory body must also provide expert information and support to other government bodies and the public in the event of an emergency involving radioactive material, as well as implement international obligations, such as the Convention on Early Notification of a Nuclear Accident67 and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency.68 64

IAEA (2004). See Dauer et al. (2011); French et al. (2007); Raskob et al. (2010). 66 Stoiber et al. (2010), p. 79. 67 Convention on Early Notification of a Nuclear Accident (1986). 68 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986). 65

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Processing of Radioactive Material Mining Numerous nations engaged in uranium or thorium ore mining have established a legal framework to ensure the protection of workers, the public, and the environment from radiation risks associated with various phases of mining, such as exploration, excavation, and decommissioning.69 Nevertheless, many countries still lack active regulatory bodies to control mining and processing of radioactive materials.70 The 2015 IAEA Dictionary of National Regulatory Bodies, which revealed that 53 countries globally lack any form of regulatory body for radiation safety, with most of them lacking any nuclear law. Among these 53 countries, 24 are members of the IAEA, while the remaining 29 are yet to become members.71 Interestingly, most of these countries without regulatory bodies are located in Asia.72 The IAEA categorizes mining and processing of radioactive materials based on the level of radiological hazard. The regulatory body, whether a mining or nuclear regulator, should specify which operations require regulatory control and identify the type of control.73 Legislation for mining and processing should identify the activities covered, outline the information required of applicants, and summarize the major responsibilities of licensees, including the obligation to promptly inform and seek authorization for any changes that could result in radiation hazards.74 Transportation The IAEA established a program for guiding the safe transportation of radioactive materials and collaborates with other international regulatory bodies to publish Regulations for the Safe Transport of Radioactive Material.75 The IAEA updates these regulations regularly, ensuring they align with other relevant international bodies.76 The IAEA’s regulations are widely used and incorporated into international instruments for air, sea, and land transportation, promoting uniformity in the management of radioactive materials during international commerce.77 Many countries adopt these regulations into their national legislation, and it is beneficial for even states with small radioactive material programs to reference and translate the IAEA’s regulations.78

69

Adhikari et al. (2021). Ibid, 172. 71 Ibid. 72 Ibid. 73 Stoiber et al. (2010), pp. 83–86. 74 IAEA (2002a, b); IAEA, ILO, WHO (1983); IAEA, ILO (2004). 75 IAEA (2005c, 2009). 76 Stoiber et al. (2010), pp. 87–89. 77 Ibid. 78 Ibid. 70

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Radioactive Waste Chapter 10 of the IAEA 2003 Handbook explores the intricate art of managing radioactive waste.79 The characteristics of radioactive waste call for unique strategies in handling, treating, and storing it for both short-term and long-term periods. Despite differences in policies for managing and disposing of radioactive waste, nations relying on nuclear energy have reached a consensus on the fundamental principles that should guide the management of radioactive waste and spent fuel, as reflected in the 1997 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management.80 This non-binding convention provides basic guidance for member states in creating legislation that aligns with their national policies. National legislation for radioactive waste management should reflect both the nature of a national nuclear program and its policy decisions regarding waste management.81 If a separate law is adopted, it should cover provisions for scope and objectives, as well as the role of the regulatory body and radiation protection measures.82 Technical provisions regarding radioactive waste and spent fuel management should be addressed in regulations, while basic policy and institutional matters should be included in legislation.83

Nuclear Security and Physical Protection Nuclear security, as defined by the IAEA Glossary, encompasses the efforts to prevent and respond to malicious acts, such as theft, sabotage, or unauthorized access— involving nuclear materials, radioactive substances, and nuclear-related facilities.84 The most significant international documents relating to nuclear security includes the Physical Protection of Nuclear Material and Nuclear Facilities,85 the International Convention for the Suppression of Terrorist Bombings,86 the United Nations Security Council Resolutions 137387 and 154088 addressing terrorism and the nonproliferation of weapons of mass destruction, the Code of Conduct on the Safety and Security of Radioactive Sources,89 the Convention on the Physical Protection of 79

Stoiber et al. (2003), pp. 97–102. Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (1997). 81 Stoiber et al. (2010), pp. 91–98. 82 Ibid. 83 Ibid. 84 IAEA (2010). See also Gandhi and Kang (2013). 85 IAEA (1999b). 86 United Nations (1997). 87 United Nations (2001). 88 United Nations (2004). 89 IAEA (2004). 80

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Nuclear Material,90 the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation,91 the Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms,92 and the International Convention for the Suppression of Acts of Nuclear Terrorism.93 In the past, the primary responsibility of securing these materials fell upon individual governments.94 Due to the sensitive nature of security measures, including intelligence gathering and criminal investigations, governments have been hesitant to address these topics in a global setting.95 Nuclear security threat is mostly experienced after the 9/11 attacks. Therefore, the Security Council Resolution 1373 (2001)96 was adopted in response to the 9/11 attacks to boost international cooperation and improve national measures to counter terrorism financing and preparation.97 The resolution calls on member states to report their implementation of the 20 measures outlined in the resolution to the United Nations Counter-Terrorism Committee. Additionally, the Security Council Resolution 154098 was passed in 2005 to deal with non-state actors and weapons of mass destruction.99 It obligates states to enforce laws prohibiting non-state actors from acquiring, possessing or using nuclear weapons and any other weapons of mass destruction. States are also required to establish domestic controls, account for and secure related materials, implement effective physical protection measures, improve border controls and law enforcement, and enforce penalties for violations of export control laws. In the face of an ever-growing threat of terrorism and malicious use of nuclear or radioactive material, however, the global community has rallied to establish a more comprehensive nuclear security framework. The IAEA and its member states have placed increased emphasis on international collaboration to prevent the acquisition of nuclear materials by malevolent actors.100 Recognizing that these threats span across 90

IAEA (1980). International Maritime Organization (2005b). 92 International Maritime Organization (2005a). 93 UN (2005). 94 Stoiber et al. (2010), p. 129. 95 Ibid. 96 United Nations (2001). 97 Stoiber et al. (2010), p. 132. 98 United Nations (2004). 99 See Footnote 97. 100 In fact, the international cooperation is so important that in the 2005 IAEA Conference at London, Dr. Mohamed ElBaradei (Director General) in his statement pointed that: “Security strategies, for many centuries, have been based on boundaries: the strategic placement of cities and borders to take advantage of natural barriers; defenses that relied on walls, trenches and armadas; and the use of ethnic, religious or other groupings to distinguish friend from foe. In the twentieth century, the advent of airplanes, submarines and ballistic missiles began to undermine this approach to security—by enabling the remote delivery of destruction on a scale previously not envisioned. But the change that has altered the international security landscape the most drastically is, in fact, globalization. The global community has become interdependent, with the constant movement of people, ideas and goods. Many aspects of modern life—communication, the global marketplace and, most recently, 91

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borders, the international community has made it a priority to shore up any weaknesses in the security chain. To this end, the 2005 Amendment to the Convention on the Physical Protection of Nuclear Material (CPPNM) mandates that participating nations establish, maintain and enforce physical protection measures to safeguard against theft or illegal possession of nuclear material, ensure the prompt recovery of lost or stolen material, secure facilities and material from sabotage, and reduce the radiological impact of such acts.101 States are required to implement a legislative framework, appoint a competent authority, and take necessary administrative steps for physical protection.102 The Amendment Convention identifies 12 principles that should guide the physical protection regime, covering such subjects as state responsibility, licensing holder responsibility, security culture, and contingency planning.103 It also requires states to enhance information sharing, coordination and cooperation in cases of theft, sabotage, or unauthorized acquisition of nuclear material.104 Smuggling of nuclear material and sabotage are defined as punishable offenses.105 The Amendment Convention also includes provisions for extradition and mutual legal assistance.106 Additionally, the International Convention for the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism Convention) acknowledges the need for enhanced international cooperation to adopt practical measures against acts of nuclear terrorism.107 The Nuclear Terrorism Convention outlines obligations for states to criminalize and suppress acts of nuclear terrorism, provide mutual legal assistance, and cooperate in investigations and prosecution.108 The Nuclear Terrorism Convention also outlines various offenses and crimes related to nuclear material and facilities, such as terrorism, theft, and sabotage. It not only requires member states to enforce these offenses as criminal acts109 but also calls for international cooperation in exchanging information, preventing and responding to nuclear terrorism, and protecting radioactive material.110 These international agreements, resolutions, and codes require member states to implement new or enhanced criminal laws to address nuclear security concerns. However, this task is not without challenges for lawmakers. The main challenge is to ensure compatibility between criminal and nuclear laws. In some legal systems, the rise in international terrorism—clearly indicate that our understanding of and approaches to national and international security must be adjusted, in keeping with new realities.” See ElBaradei (2005). 101 IAEA (2005a). 102 Ibid. 103 Ibid. 104 Ibid. 105 Ibid. 106 Ibid. 107 United Nations (2005). 108 Ibid. 109 Ibid. 110 Ibid.

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the criminal code covers all criminal offenses, making it inconsistent to include criminal provisions in a standalone nuclear law. Instead, these provisions would be included in the criminal code. In other cases, however, it might be more appropriate to include nuclear security offenses in a comprehensive nuclear law. This decision depends on each country’s policy and legal practices.111 Harmonizing national laws and procedures in these areas can avoid potential conflicts such as double jeopardy, punishment, and extradition of accused offenders. Overall, the key components of nuclear security legislation should include physical protection measures, licensing and inspection procedures, response measures for theft or unauthorized access, criminal offenses with severe penalties, and national arrangements for implementing international cooperation.

Safeguards Adherence to international treaties such as the NPT, and the state’s own safeguards agreement with the IAEA, are crucial for the successful implementation of nuclear safeguard. The nuclear newcomers are required to establish a system of accounting and control for nuclear material under the NPT112 and its safeguards agreement.113 National law should address the establishment of this system and provide the regulatory body in charge to monitor as per the guidance of the IAEA.114 A legislative framework for safeguards should include clear objectives, an affirmation of the peaceful use of nuclear energy, key term definitions, authorization and licensing provisions, a system of accounting and control, support for IAEA verification activities, record-keeping requirements, reporting requirements, and arrangements for submitting information requested by the IAEA. As some elements may already be included in other parts of the law, they do not need to be repeated in the safeguards chapter. The 2003 IAEA Handbook’s Chapter 13 highlights the reasons behind the control and regulation of transfers of nuclear and radioactive materials, as well as related

111

For example, in the United States, criminal provisions related to nuclear security offenses are included in the Atomic Energy Act (AEA) of 1954, which is a comprehensive nuclear law. The AEA establishes criminal penalties for various offenses related to nuclear security, such as the unauthorized possession of nuclear material or sabotage of a nuclear facility. In contrast, in the UK, criminal provisions related to nuclear security offenses are primarily included in the Terrorism Act of 2000 and the Anti-Terrorism, Crime, and Security Act of 2001, which are part of the country’s criminal code. These provisions cover offenses such as the possession of radioactive material with intent to cause harm. The decision of where to include criminal provisions related to nuclear security offenses within a legal system depends on each country’s policy and legal practices, and there is no one-size-fits-all approach. 112 IAEA (1970). 113 See Footnote 2. 114 Ibid.

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equipment and technology.115 These measures are not solely aimed at impacting activities outside a state’s borders, but also play an influential role in maintaining the state’s sovereignty over activities within its territory. The 3S concept, which encompasses safety, security, and safeguards, is relevant to the import and export controls, necessary for preventing the spread of nuclear weapons. The controls also serve a security function by deterring illicit trafficking and preventing the acquisition of nuclear and radioactive material by malicious actors. In addition, the controls contribute to safety by ensuring that imported or exported materials are only obtained by capable individuals or organizations for authorized purposes. Since the publication of the 2003 Handbook,116 the significance of nuclear import and export controls has been reinforced by events and the development of international instruments, including the Security Council Resolution 1540 (2004). This resolution, binding on all UN Member States, has broad implications for nuclear nonproliferation and security. It is crucial for legislative drafters to ensure that provisions implementing the resolution are covered by the state’s law: [A]ll States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials and to this end shall … [e]stablish, develop, review and maintain appropriate effective national export and transshipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export and controls on providing funds and services related to such export and trans-shipment such as financing, and transporting that would contribute to proliferation, as well as establishing end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations.117

The IAEA made a major contribution to regulating radioactive material import and export through the publication of “Guidance on the Import and Export of Radioactive Sources.”118 This guide also provides suggestions for states to include in their legislation to prevent the loss of control over radioactive sources, which could pose a threat to safety and security. The guide adopts the source categorization from the “Code of Conduct on the Safety and Security of Radioactive Sources”119 and offers a comprehensive framework for evaluating and approving import and export requests for category I and II sources.120 It outlines several key components, such as designating a state contact for facilitating transfers, procedures for obtaining export authorization, factors to consider for import authorization, guidance for exceptional circumstances, considerations for transit and trans-shipment, and a self-assessment questionnaire.121 115

Stoiber et al. (2003), pp. 113–119. Ibid, 121–128. 117 United Nations (2004), paragraph 3. 118 IAEA (2005b). 119 IAEA (2004). 120 See Footnote 118. 121 Ibid. 116

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For effective implementation, national legislation on nuclear import and export controls should include essential regulatory functions, reflect the state’s obligations under international agreements, and clearly assign responsibility for implementation. The law should also require authorization for nuclear-related exports and imports, outline the basic features of the control system including licensing criteria, and provide the state with the means to obtain information on exported or imported material. Finally, provisions for enforcement, including penalties for violations, should be included in the legislation.

Nuclear Liability and Coverage The international regime for civil liability in the event of nuclear damage is based on key principles, such as strict liability imposed on the operator of a nuclear facility, limiting the operator’s liability in amount, requiring financial security from the operator to cover potential claims, and limiting the duration of liability.122 These principles aim to ensure non-discrimination and equal treatment of victims, provide for a single competent court with exclusive jurisdiction, and guarantee the recognition and enforcement of the judgements from the court by other contracting states.123 There are five main instruments that embody these principles: the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy124 ; the 1963 Brussels Convention Supplementary to the Paris Convention (the Brussels Supplementary Convention)125 ; the Protocol of 12 February 2004 to the 1960 Paris Convention (2004 Paris Convention)126 ; the Protocol of 12 February 2004 to the 1963 Brussels Supplementary Convention (2004 Brussels Supplementary Convention)127 ; the 1963 Vienna Convention on Civil Liability for Nuclear Damage, the Protocol to Amend the Vienna Convention (1997 Vienna Convention)128 ; and the Convention on Supplementary Compensation for Nuclear Damage (1997 CSC).129 Each of these instruments has their own scope of application but generally applies to liability for damages resulting from a nuclear incident within a nuclear facility 122

Ibid, 99–103. Ibid. 124 Convention on Third Party Liability in the Field of Nuclear Energy of 29th July 1960, as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, Organisation for Economic Co-operation and Development, Paris. 125 Convention of 31 January 1963 Supplementary to the Paris Convention of 29 July 1960, as amended by the additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, Organisation for Economic Co-operation and Development, Paris. 126 Protocol to Amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960 (2004) Organisation for Economic Co-operation and Development, Paris. 127 Protocol to Amend the Brussels Convention Supplementary to the Paris Convention of 29 July 1960 (2004) Organisation for Economic Co-operation and Development, Paris. 128 Vienna Convention on Civil Liability for Nuclear Damage, INFCIRC/500, IAEA, Vienna (1996). 129 IAEA (1998). 123

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or during the transportation of nuclear material. Contracting parties are obligated to align their national laws with the provisions of the relevant instrument, for the purpose of harmonizing national legislation and promoting international trade in nuclear materials. The instruments provide a unified basic regime of nuclear liability and establish harmonized rules for resolving conflicts of law and procedural issues.

Miscellaneous, Final, and Transitional Provisions: Entry into Force, Succession, Repeal When creating a law, it is imperative to address any procedural or organizational issues that arise from its implementation.130 These concerns are typically addressed in the final stages of the legislative process and require the involvement of experts with knowledge on national law. This is important to ensure that the provisions included in the law reflect the legislative practices of the particular state. Many states have already established legislative frameworks for the control of nuclear energy and ionizing radiation. However, when a law is newly adopted or amended, it is necessary to clarify how and when these new provisions will come into effect and how they relate to previous legislation. This may involve providing a transition period between the adoption of the law and its full implementation, especially if a new regulatory body is being established or new requirements are imposed on authorized persons or entities. In such cases, the latest law adopted will generally be considered valid if there is a conflict with previous legislation.131 However, there may be situations where previous laws (or parts of them) are intended to remain valid, which should be clearly indicated in the new law through the inclusion of a savings provision.132 The specific provisions that are included in the law will depend on the national legislative practices of each state, but some typical provisions include: (1) the entry into force of the law, which is typically indicated by a specific date or the completion of an administrative action by a designated official or body, linked to publication in an official journal or gazette; (2) the transfer of functions and resources from a predecessor body to a newly created regulatory body; (3) transitional arrangements for previously issued authorizations or licenses; and (4) the repeal of previous laws that no longer have legal effect.

130

Stoiber et al. (2010), p. 145. Ibid. 132 Ibid. 131

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Conclusion Drafting of nuclear legislation is a complex process that requires careful consideration of various factors. The fundamental objectives of nuclear laws include committing to peaceful nuclear usage, establishing a regulatory body, reducing radiological risk, enforcing safety standards, and securing financial indemnification for nuclear damage. National nuclear energy laws consist of fundamental regulations that apply to all stakeholders and technological specifications. In addition to statutes, regulations and technical guides play a crucial role in ensuring reliable and responsible nuclear energy development, with procedural and functional regulations defining licensing processes and technical standards. It is thus essential to align national legislation with international obligations. Eventually, the roles of different organizations should be considered within the nuclear regulatory framework. By adopting comprehensive and well-designed legal and regulatory frameworks, nuclear newcomers can facilitate the safe and responsible utilization of nuclear energy.

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Conclusion

This research publication aims to serve as a resource for Asian countries seeking to establish a regulatory framework for nuclear energy. This book offers guidance on the legal issues that must be addressed in order to develop and operate nuclear power plants in a safe, secure, and sustainable manner. By providing insights into safety regulations, security measures, waste management practices, and liability concerns, the book tries to assist newcomers in identifying potential legal challenges and taking proactive steps to address them. Chapter 1 of the book serves as an introduction, setting the stage for the subsequent discussions. It provides a background to nuclear power regulation and highlights the essential elements of nuclear energy law. By laying this foundation, the chapter enables readers to understand the significance of the legal aspects associated with nuclear energy and emphasizes the specific focus of the book. Chapter 2 sheds light on the technical aspects of nuclear energy production, offering a deeper understanding of the subject matter. It also provides a brief historical context of nuclear energy, highlighting its evolution over time. Furthermore, the chapter delves into the social debate surrounding nuclear energy, addressing the various perspectives and concerns raised. By discussing future prospects and challenges related to nuclear energy programs, this chapter offers crucial guidance to newcomers, empowering them to make informed decisions regarding the adoption of nuclear power in a safe, secure, and sustainable manner. Chapter 3 serves as a bridge between the technical and legal aspects of nuclear energy. It underscores the importance of adhering to international best practices and standards in order to ensure the safe and sustainable development of nuclear energy. By providing information on relevant international agreements, this chapter familiarizes readers with the legal requirements that must be met to comply with these standards. It emphasizes the need for a robust regulatory framework that aligns with international norms and highlights the potential role of international organizations such as the International Atomic Energy Agency (IAEA) in supporting newcomer countries.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 R. Karim and E. Y. J. Lee, Navigating Nuclear Energy Lawmaking for Newcomers, International Law in Asia, https://doi.org/10.1007/978-981-99-5708-8

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Conclusion

Chapter 4 deals with the complex world of nuclear governance challenges in Asia. It explores how the 3S+L framework (safety, security, safeguards, and liability) is being utilized to ensure the responsible use of nuclear energy in the region. The chapter acknowledges that while many Asian states operating nuclear power reactors are parties to major nuclear safety conventions, some states contemplating the acquisition of nuclear power plants or hosting research reactors have not acceded to all relevant treaties relating to nuclear safety. It also raises concerns about transparency regarding military nuclear facilities in certain countries. Additionally, the chapter addresses the issue of nuclear safeguards and security, highlighting the variations across different regions in Asia. It highlights the unique challenges and circumstances faced by each subregion, such as China’s military expansion, North Korea’s threat to global non-proliferation system, the India-Pakistan nuclear arms race, and the security imbalance in the Middle East. The chapter stresses the need for prioritizing safety, security, and non-proliferation, and calls for the development of effective governance approaches tailored to each region’s specific characteristics. Chapter 5 focuses on the crucial process of strengthening nuclear governance in Asia. It provides a comprehensive analysis of the current state of nuclear governance in the region and offers insights into the measures being taken to ensure the safe and responsible use of nuclear energy. The chapter emphasizes the importance of cooperation between the IAEA and regional networks to enhance safety, security, safeguards, and liability related to nuclear operations. It suggests the establishment of an international peer-reviewed mechanism encompassing all nuclear-related 3S+L matters to further strengthen safety, security, and safeguard measures. The chapter also addresses concerns about proliferation and underscores the significance of managing the nuclear fuel cycle and establishing reliable guarantees for the supply of nuclear fuel. It emphasizes the need for a comprehensive and cooperative approach that promotes dialogue, trust-building, and adherence to international agreements. By effectively managing power dynamics, strengthening non-proliferation measures, and pursuing diplomatic resolutions, the region can work toward a more stable and secure future. The chapter concludes by highlighting the importance of harmonizing nuclear liability regulations and establishing a unified international nuclear liability convention for Asian states. This will ensure adequate compensation for transboundary damages and facilitate international cooperation in the field of nuclear technologies, contributing to the safe and responsible use of nuclear energy in the region. Chapter 6 serves as a practical guide on the fundamental components of nuclear lawmaking, providing basic information for model laws and regulations. It builds upon the detailed work and analysis undertaken in the preceding chapters, incorporating the insights gained. This chapter addresses the serious questions and concerns that nuclear power triggers, such as safety, security, safeguards, and liability. It underscores the importance of addressing any gaps in the nuclear regulatory regime through comprehensive legislation. The chapter explores the complexities involved in drafting nuclear legislation and emphasizes the need for careful consideration of various factors.

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In sum, diverse factors contribute to the overall development of nuclear laws, which encompass various crucial aspects. These factors strive to uphold the commitment to peaceful usage of nuclear energy, establish an authoritative regulatory body, mitigate radiological risks, enforce stringent safety standards, and ensure financial protection against nuclear damage. National nuclear energy laws encompass fundamental regulations that are applicable to all stakeholders and encompass technological specifications. To ensure reliable and responsible development of nuclear energy, statutes are complemented by regulations and technical guides that play a pivotal role. These additional measures provide a framework for robust licensing processes and technical standards, thus ensuring the reliability and accountability of nuclear energy endeavors. It is imperative to harmonize national legislation with international obligations to maintain alignment and compliance on a global scale. Furthermore, the nuclear regulatory framework must acknowledge the roles and responsibilities of different organizations involved. By adopting comprehensive and well-designed legal and regulatory frameworks, countries embarking on nuclear energy programs can effectively facilitate the safe and responsible utilization of this powerful energy source.